Rb. Den Haag - C-09-604682-KG ZA 20-1232

Rb. Den Haag - C-09-604682-KG ZA 20-1232

Court:	Rb. Den Haag (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 30 Directive (EU) 2015/849 Article 30 Directive (EU) 2018/843
Decided:	18.03.2021
Published:	17.03.2021
Parties:
National Case Number/Name:	C-09-604682-KG ZA 20-1232
European Case Law Identifier:	ECLI: NL: RBDHA: 2021: 2457
Appeal from:
Appeal to:	Unknown
Original Language(s):	Dutch
Original Source:	Rechtspraak.nl (in Dutch)
Initial Contributor:	n/a

The Court of the Hague (Rechtbank Den Haag) rejected Privacy First's claim against the ultimate beneficial owners (UBO) register. According to the court, there is no ground for provisional suspension of the Dutch legislation created in the context of the mandatory implementation of the fourth and fifth anti-money laundering directive. In addition, there is no ground for referring questions for a preliminary ruling about the compatibility of these directives with fundamental rights guaranteed by European law.

English Summary

Facts

Legal framework

Article 30 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for money laundering or terrorist financing (AMLD4) obliged Member States to include information about the ultimate beneficial owners (hereinafter: 'UBOs') of companies and other legal entities in a central (trade) register, a company register or a public register. Information about UBOs should in all cases be accessible to the competent authorities, the Financial Intelligence Unit (FIU) and the obliged entities in the context of their customer due diligence. In addition, all persons or organizations that could demonstrate a legitimate interest had access to the name, month and year of birth, nationality and state of residence of the UBO, as well as to the nature and scope of the economic interest held by the UBO.

On July 9, 2018 Directive (EU) 2018/843 of the European Parliament and of the Council of May 30, 2018 amending AMLD4 entered into force (AMLD5). The amended article 30 paragraph 5 stipulates that information about UBOs must be publicly accessible. In all cases, competent authorities, the FIU, the obliged entities in the context of their customer due diligence and every member of the public must be able to consult the UBO information. This includes at least the name, month and year of birth, state of residence, nationality and the nature and size of the economic interest held by the UBO. AMLD5 also states that protection of publicly accessible UBO information can be requested, this on the understanding that this exception cannot be invoked against the competent authorities, the FIU, credit institutions, financial institutions and obliged entities that are public officials. It has been added that a request for foreclosure should be decided on a case-by-case basis, based on a detailed assessment of the exceptional nature of the circumstances.

AMLD4 and AMLD5 have been implemented in the Netherlands by amending the Trade Register Act 2007, the Trade Register Decree 2008 and the Money Laundering and Terrorist Financing Prevention Act (Wwft).

Dispute

Privacy First requested:

with regard to the obligation to supply data about the UBO to the Trade Register:
- to render inoperative or at least to declare inapplicable or at least to suspend the obligation to supply data about the UBO to the Trade Register, as laid down in Article 15a of the Trade Register Act, or alternatively,
- to grant the primary claim provisionally by interim judgment, to submit preliminary questions to the Court of Justice of the European Union (CJEU) about the compatibility of the European directives on which this obligation rests with a) the Charter of Fundamental Rights of the European Union ( hereinafter: 'the Charter'), b) the principles of subsidiarity and proportionality as set out in the Treaty on European Union and c) the General Data Protection Regulation ( GDPR ) and, after answering these questions, award the primary claim in a final judgment; or, more in the alternative,
- submit preliminary questions to the CJEU on the compatibility of the European directives on which this obligation rests with a) the Charter, b) the principles of subsidiarity and proportionality as set out in the Treaty on European Union and c) the GDPR , and after answering who ask to assign the primary claim
with regard to the right of everyone to view data about the UBO in the Trade Register:
- the right of any person to inspect data about the UBO in the Trade Register, as laid down in Article 21 of the Trade Register Act in conjunction with Article 15a paragraph 2 of the Trade Register Act, ineffective or at least to declare it inapplicable or at least to suspend it; or, alternatively:
- to grant the primary claim provisionally by means of an interlocutory judgment and to submit preliminary questions to the CJEU on the compatibility of the European directives on which this obligation rests with a) the Charter, b) the principles of subsidiarity and proportionality as set out in the Treaty on European Union and c) the GDPR , and after answering those questions, assign the primary claim by final judgment; or, more in the alternative:
- submit preliminary questions to the CJEU on the compatibility of the European directives on which this obligation rests with a) the Charter, b) the principles of subsidiarity and proportionality as set out in the Treaty on European Union and c) the GDPR , and after answering who ask to assign the primary claim,

Privacy First argued that with AMLD4 and AMLD5, the EU legislator is infringing the fundamental rights of UBOs, guaranteed under European law, to protect their privacy and personal data. According to Privacy First, the EDPS questions the fairly general objectives of AMLD5 and has reservations about the proportionality of the intended wide public access to UBO data. More specifically, Privacy First pointed out that the EDPS takes the view that only competent authorities should have access to this data. According to the EDPS, there is a 'blanket measure', which does not meet the requirements of proportionality. In the context of the development of the Dutch implementation legislation, according to Privacy First, the Dutch Data Protection Authority has also given very critical advice and this advice has also been ignored.

According to Privacy First, the Dutch implementation legislation must be made inoperative insofar as it concerns the obligation to register privacy-sensitive data of UBOs in the UBO register and the (partly) public accessibility of this data. To this end, Privacy First argued that this legislation is unmistakably ineffective due to conflict with the provisions of treaties and decisions of international organizations that are binding on everyone. Although it is the competence of the CJEU to test the relevant European directives against any binding provisions of treaties and this assessment has not yet taken place here, according to Privacy First, based on case law of the CJEU and the fact that at EU level no data protection impact assessment has taken place, sufficiently plausible for the time being that the CJEU will rule that these guidelines cannot be maintained.

According to Privacy First, these regulations are in conflict with a) Article 8 ECHR, b) Articles 7, 8, 16 and 52 of the Charter, c) Article 5 of the Treaty on European Union and d) various provisions of the GDPR, The conditions for a legitimate infringement of the fundamental rights of protection of privacy and personal data have not been met. Although combating money laundering and terrorist financing is a legitimate goal, according to Privacy First, it has not been sufficiently demonstrated that there is an imperative social necessity for the infringement of the fundamental rights of UBOs that is currently being made to achieve that goal. As a result, this infringement is not proportional in the opinion of Privacy First.

Privacy First pointed out that it concerns the recording of and access to privacy-sensitive data of the UBOs of a large number of entities. As a result, there is a real fear among UBOs of burglaries and kidnappings. According to Privacy First, the possibility of shielding UBO data from public consultation does not offer sufficient guarantees. Blocking can only be invoked in exceptional situations and the data is nevertheless included in the UBO register despite the blocking. There is a significant risk that this protected data will still end up on the street as a result of data leaks, hacks and human errors. According to Privacy First, there is also a risk of identity fraud.

According to Privacy First, money laundering and terrorist financing can also be effectively combated without a publicly accessible UBO register. Investigation services have access to all information they need (including UBO data) on the basis of anti-money laundering guidelines. In the opinion of Privacy First, the question is whether the objectives of the anti-money laundering guidelines are served by the establishment of a publicly accessible UBO register. The necessity of such a register has never been stated by the European legislator and in any case not substantiated or demonstrated.

Holding

The court rejected Privacy First claim.

The court agreed with the State that an allocation of both the primary and the alternative claim will result in the State no longer complying with its obligation under Article 30 of AMLD5 to establish a national public UBO register. As long as AMLD5 is in full force, the State cannot be put in a position where it manifestly contravenes that directive. The judgment on the legality of a European directive is reserved for the CJEU. It is not in dispute that the CJEU has not yet ruled on the legality of the public UBO register prescribed by AMLD4 and AMLD5. In that state of affairs, there is no room for the preliminary relief judge for interim relief proceedings to test the legality of the parts of the Dutch implementation legislation that have been questioned by Privacy First, which, after all, are a direct translation of mandatory provisions from AMLD4 and AMLD5.

According to the court, putting questions to the CJEU for a preliminary ruling is precisely one of the instruments that can be used by the court to answer the question whether national legislation is unmistakably ineffective. After all, the fact that the CJEU declares a European directive underlying national legislation ineffective is a factor of great importance in answering that question. In this case, the preliminary relief judge may ask questions for a preliminary ruling if there are doubts about the legal validity of (parts of) the AMLD4 and AMLD5 underlying Dutch UBO legislation. It must therefore be assessed whether there is cause for such doubts with regard to the obligation arising from these guidelines to set up a (partly) public UBO register. The preliminary relief judge answers this question in the affirmative with regard to the (partly) public nature of the UBO register as prescribed by AMLD5.

The court stated that it cannot be ruled out in advance that, partly on the basis of this advice from the EDPS, the CJEU will come to the conclusion that the (partly) public character of the UBO register is not compliant with the principle of proportionality to be respected by the European legislator. This means that, in principle, the Dutch courts can submit preliminary questions to the CJEU in this regard. However, the preliminary relief judge will not ask questions about this. The reason for this is that the Tribunal d'arrondissement in Luxembourg already asked questions on this point to the CJEU on 13 November 2020. These questions largely correspond with the questions that Privacy First formulated in its summons with regard to the (partly) public nature of the UBO register. Privacy First has not made it clear that, and if so, how it serves its interests if the preliminary relief judge essentially submits the same questions to the CJEU. After all, the CJEU will not answer these questions in any other way. This means that Privacy First lacks sufficient interest in its claim to refer questions for a preliminary ruling, insofar as these relate to the (partly) public nature of the UBO register.

According to the court, Privacy First has insufficiently substantiated that the creation of a UBO register and the associated registration obligation violates the fundamental rights of UBOs guaranteed under European law or that the principles of proportionality and subsidiarity. Contrary to what Privacy First seems to argue, for the moment there is insufficient reason to doubt the effectiveness of the UBO register in preventing money laundering and terrorist financing through the financial system (even if it must be assumed that the information contained therein is not (partially) may be publicly accessible). Nor does the inadequately substantiated and thus implausible assertion by Privacy First give rise to doubt that there is a considerable chance that the currently protected additional data will be discarded due to data leaks and / or the imminent linking of European UBO registers.

Comment

Share your comments here!

Further Resources

Share blogs or news articles here!

English Machine Translation of the Decision

The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.

Court of the hague
Team trade - preliminary relief judge

case / cause list number: C / 09/604682 / KG ZA 20-1232

Interim injunction of March 18, 2021

in the case of

PRIVACY FIRST FOUNDATION in Amsterdam,

plaintiff,

lawyers mrs. OMBJ Following and FF Blokhuis in Amsterdam

against:

THE STATE OF THE NETHERLANDS (Ministry of Finance, Ministry of Justice and Security and Ministry of Economic Affairs and Climate) in The Hague,

defendant,

lawyers mrs. GJ Zwenne and T. Gillhaus in The Hague.

The parties are hereinafter referred to as 'Privacy First' and 'the State' respectively.

1The procedure
1.1.
The course of the procedure is evidenced by:

- the writ of summons of 5 January 2021, with exhibits 1 to 14;

- the deed submitting exhibits 15 and 16 of Privacy First;

- the statement of defense, with exhibits;

- the oral hearing held on 25 February 2021, during which pleading notes were submitted by both parties.

1.2.
At the hearing, the verdict was set to date.

2The facts
On the basis of the documents and the proceedings at the hearing, the following is assumed in these proceedings.

2.1.
In short, on 20 May 2015, Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for money laundering or terrorist financing entered into force. This so-called fourth anti-money laundering directive is hereinafter referred to as 'AMLD4'.

2.2.
Article 30 paragraph 3 of AMLD4 obliged Member States to include information about the ultimate beneficial owners (hereinafter: 'UBOs') of companies and other legal entities in a central (trade) register, a company register or a public register. Article 30 paragraph 5 of AMLD4 stipulated that information about UBOs should in all cases be accessible to the competent authorities, the Financial Intelligence Unit (FIU) and the obliged entities in the context of their customer due diligence. In addition, on the basis of AMLD4, all persons or organizations that could demonstrate a legitimate interest had access to the name, month and year of birth, nationality and state of residence of the UBO, as well as to the nature and scope of the economic interest held by the UBO. . Member States were empowered to allow wider access under their national law. Article 30 paragraph 5 of AMLD4 gave Member States the option to register online persons who request access to UBO information in the national registers and to have them pay a fee equal to a maximum of the associated administrative costs. Article 30, paragraph 9 of AMLD4 stipulated that in exceptional circumstances and on a case-by-case basis, Member States could provide for an exception to access to UBO information. This exception was relevant if access to the information exposes the UBO to a risk of fraud, kidnapping, blackmail, violence or intimidation or if the UBO is underage or incapacitated.

2.3.
On July 9, 2018 - in short - Directive (EU) 2018/843 of the European Parliament and of the Council of May 30, 2018 amending AMLD4 entered into force. This so-called fifth anti-money laundering directive is hereinafter referred to as 'AMLD5'. The amended article 30 paragraph 5 stipulates that information about UBOs must be publicly accessible. In all cases, competent authorities, the FIU, the obliged entities in the context of their customer due diligence and every member of the public must be able to consult the UBO information. This includes at least the name, month and year of birth, state of residence, nationality and the nature and size of the economic interest held by the UBO. AMLD5 also states that protection of publicly accessible UBO information can be requested, This on the understanding that this exception cannot be invoked against the competent authorities, the FIU, credit institutions, financial institutions and obliged entities that are public officials. It has been added that a request for foreclosure should be decided on a case-by-case basis, based on a detailed assessment of the exceptional nature of the circumstances.

2.4.
In the Consideration (Recital 30) of AMLD5, the Union legislator considered that public access to information about UBOs enables more research of information by society, including by the press or civil society organizations, and contributes to maintaining trust in the public sector. integrity of business transactions and the financial system. Furthermore, the Union legislature considers that public access can contribute to the fight against the abuse of companies and other legal entities and legal arrangements for money laundering and terrorist financing, both by advancing investigations and by reputation effects, by allowing anyone to enter into those transactions on be aware of the identity of the UBOs behind a legal entity.

2.5.
AMLD4 and AMLD5 have been implemented in the Netherlands by amending the Trade Register Act 2007, the Trade Register Decree 2008 and the Money Laundering and Terrorist Financing Prevention Act (Wwft). The law of 24 June 2020 (hereinafter: 'the Implementation Act') to this effect was published in the Official Gazette on 7 July 2020. The Implementation Act entered into force on 8 July 2020. The legal articles to be discussed below entered into force on September 27, 2020.

2.5.1.
Pursuant to Article 15a paragraphs 1 and 2 of the Trade Register Act, the Trade Register records who the UBOs are of companies or other legal entities. Of these UBOs are included: a) the citizen service number, b) a tax identification number of a country other than the Netherlands of which he is a resident, if this has been assigned to him by his state of residence, c) the name, month and year of birth, state of residence and the nationality, d) the date of birth, the place of birth, the country of birth and the home address and e) the nature of the economic interest held by the UBO and the size of this interest, indicated in the classes to be determined by order in council. Furthermore, on the basis of paragraph 3 of the aforementioned article, copies of the identity documents and copies of the documents,

2.5.2.
According to article 21 paragraph 1 of the Trade Register Act, a number of data concerning the UBOs is publicly accessible. This concerns a) the name, b) the month and year of birth, c) the state of residence, d) the nationality and e) the nature and size of the economic interest held by the UBO. It is not possible to search for UBO information by person within this data. UBOs are given insight into the number of consultations of the information concerning them.

2.5.3.
It follows from Article 28 paragraph 2 of the Trade Register Act that the BSN number, the tax identification number, the date of birth, the place of birth, the country of birth and the home address of the UBO (hereinafter: 'the additional information') is only provided by the FIU or a general competent authority designated by administrative order can be inspected.

2.5.4.
Pursuant to Article 50 of the Trade Register Act, a fee is requested for obtaining the UBO information, which is set at € 2.50 on the basis of Article 1 sub i of the Financial Regulation Trade Register 2019. In the Implementation Act for the registration of UBOs of companies and other legal entities, which has not yet entered into force, it can be read that paragraphs 5 to 7 will be added to Article 22 of the Trade Register Act, in which - in brief - it is stipulated that buyers of UBO information must register online before they can access the UBO information.

2.5.5.
Article 23 of the Trade Register Act provides a basis for limiting access to categories of data or documents by order in council in order to protect the privacy of UBOs. Pursuant to Article 51b paragraph 1 of the Commercial Register Decree, the name, month and year of birth, state of residence and nationality can be protected from inspection by parties other than the FIU, the competent authorities, banks, other financial companies and natural persons at the request of the UBO. as referred to in Article 1a, paragraph 4, part d of the Wwft. At the request of the UBO, access to the data concerning him can be blocked if there is a) a risk to the safety of the UBO and / or b) the UBO is a minor or legally incapacitated.

3The dispute
3.1.
Privacy First claims - in summary form - by judgment, as far as possible enforceable from stock:

I. with regard to the obligation to supply data about the UBO to the Trade Register

primary:

to render inoperative or at least to declare inapplicable or at least to suspend the obligation to supply data about the UBO to the Trade Register, as laid down in Article 15a of the Trade Register Act;

alternatively:

to grant the primary claim provisionally by interim judgment, to submit preliminary questions to the Court of Justice of the European Union (CJEU) about the compatibility of the European directives on which this obligation rests with a) the Charter of Fundamental Rights of the European Union ( hereinafter: 'the Charter'), b) the principles of subsidiarity and proportionality as set out in the Treaty on European Union and c) the General Data Protection Regulation ( GDPR ) and, after answering these questions, award the primary claim in a final judgment;

more in the alternative:

submit preliminary questions to the CJEU on the compatibility of the European directives on which this obligation rests with a) the Charter, b) the principles of subsidiarity and proportionality as set out in the Treaty on European Union and c) the GDPR , and after answering who ask to assign the primary claim,

all this with an order for the State to pay the costs of the proceedings.

3.2.
To this end, Privacy First - in summary - argues the following. With AMLD4 and AMLD5, the EU legislator is infringing the fundamental rights of UBOs, guaranteed under European law, to protect their privacy and personal data. The European Data Protection Supervisor (EDPS), as an independent body of the EU charged with data protection supervision, found that AMLD5 falls short on five fundamental points. The European legislator has not taken this criticism to heart when adopting AMLD5. According to Privacy First, the EDPS questions the fairly general objectives of AMLD5 and has reservations about the proportionality of the intended wide public access to UBO data. More specifically, Privacy First points out that the EDPS takes the view that only competent authorities should have access to this data. According to the EDPS, there is a 'blanket measure', which does not meet the requirements of proportionality. In the context of the development of the Dutch implementation legislation, according to Privacy First, the Dutch Data Protection Authority has also given very critical advice and this advice has also been ignored.

3.2.1.
According to Privacy First, the Dutch implementation legislation must be made inoperative insofar as it concerns the obligation to register privacy-sensitive data of UBOs in the UBO register and the (partly) public accessibility of this data. To this end, Privacy First argues that this legislation is unmistakably ineffective due to conflict with the provisions of treaties and decisions of international organizations that are binding on everyone. Although it is the competence of the CJEU to test the relevant European directives against any binding provisions of treaties and this assessment has not yet taken place here, according to Privacy First, based on case law of the CJEU and the fact that at EU level no data protection impact assessment has taken place, sufficiently plausible for the time being that the CJEU will rule that these guidelines cannot be maintained. According to Privacy First, the CJEU will conclude that the UBO register violates the fundamental right of UBOs to the protection of privacy and personal data and that this violation is not proportional to the goal to be achieved. According to Privacy First, the fact that the CJEU has not yet assessed this does not preclude the judge in preliminary relief proceedings from assessing whether the Dutch implementation legislation based on those guidelines is unmistakably ineffective. According to Privacy First, the CJEU will conclude that the UBO register violates the fundamental right of UBOs to the protection of privacy and personal data and that this violation is not proportional to the goal to be achieved. According to Privacy First, the fact that the CJEU has not yet assessed this does not preclude the judge in preliminary relief proceedings from assessing whether the Dutch implementation legislation based on those guidelines is unmistakably ineffective. According to Privacy First, the CJEU will conclude that the UBO register violates the fundamental right of UBOs to the protection of privacy and personal data and that this violation is not proportional to the goal to be achieved. According to Privacy First, the fact that the CJEU has not yet assessed this does not preclude the judge in preliminary relief proceedings from assessing whether the Dutch implementation legislation based on those guidelines is unmistakably ineffective.

3.2.2.
According to Privacy First, these regulations are in conflict with a) Article 8 ECHR, b) Articles 7, 8, 16 and 52 of the Charter, c) Article 5 of the Treaty on European Union and d) various provisions of the GDPR. According to Privacy First, the conditions for a legitimate infringement of the fundamental rights of protection of privacy and personal data have not been met. These conditions are as follows: there must be a legitimate aim and an imperative social necessity for the infringement, while the infringement must also be proportional to the aim to be pursued. Although combating money laundering and terrorist financing is a legitimate goal, according to Privacy First, it has not been sufficiently demonstrated that there is an imperative social necessity for the infringement of the fundamental rights of UBOs that is currently being made to achieve that goal. As a result, this infringement is not proportional in the opinion of Privacy First. Privacy First points out that it concerns the recording of and access to privacy-sensitive data of the UBOs of a large number of entities. As a result, there is a real fear among UBOs of burglaries and kidnappings. According to Privacy First, the possibility of shielding UBO data from public consultation does not offer sufficient guarantees. Blocking can only be invoked in exceptional situations and the data is nevertheless included in the UBO register despite the blocking. There is a significant risk that this protected data will still end up on the street as a result of data leaks, hacks and human errors. According to Privacy First, there is also a risk of identity fraud. According to Privacy First, money laundering and terrorist financing can also be effectively combated without a publicly accessible UBO register. Investigation services have access to all information they need (including UBO data) on the basis of anti-money laundering guidelines. In the opinion of Privacy First, the question is whether the objectives of the anti-money laundering guidelines are served by the establishment of a publicly accessible UBO register. According to Privacy First, the necessity of such a register has never been stated by the European legislator and in any case not substantiated or demonstrated. In doing so, Privacy First points out that the Tax and Customs Administration and the Minister of Finance have also publicly questioned the necessity and effectiveness of the UBO register. Investigation services have access to all information they need (including UBO data) on the basis of anti-money laundering guidelines. In the opinion of Privacy First, the question is whether the objectives of the anti-money laundering guidelines are served by the establishment of a publicly accessible UBO register. According to Privacy First, the necessity of such a register has never been stated by the European legislator and in any case not substantiated or demonstrated. In doing so, Privacy First points out that the Tax and Customs Administration and the Minister of Finance have also publicly questioned the necessity and effectiveness of the UBO register. Investigation services have access to all information they need (including UBO data) on the basis of anti-money laundering guidelines. In the opinion of Privacy First, the question is whether the objectives of the anti-money laundering guidelines are served by the establishment of a publicly accessible UBO register. According to Privacy First, the necessity of such a register has never been stated by the European legislator and in any case not substantiated or demonstrated. In doing so, Privacy First points out that the Tax and Customs Administration and the Minister of Finance have also publicly questioned the necessity and effectiveness of the UBO register. In the opinion of Privacy First, the question is whether the objectives of the anti-money laundering guidelines are served by the establishment of a publicly accessible UBO register. According to Privacy First, the necessity of such a register has never been stated by the European legislator and in any case not substantiated or demonstrated. In doing so, Privacy First points out that the Tax and Customs Administration and the Minister of Finance have also publicly questioned the necessity and effectiveness of the UBO register. In the opinion of Privacy First, the question is whether the objectives of the anti-money laundering guidelines are served by the establishment of a publicly accessible UBO register. According to Privacy First, the necessity of such a register has never been stated by the European legislator and in any case not substantiated or demonstrated. In doing so, Privacy First points out that the Tax and Customs Administration and the Minister of Finance have also publicly questioned the necessity and effectiveness of the UBO register.

3.2.3.
Insofar as it cannot be immediately decided in these interim relief proceedings to inactivate Dutch legislation on the basis of which data of UBOs must be registered in the UBO register and the UBO register is (partly) publicly accessible, in the opinion of Privacy First. preliminary questions to the CJEU. The key question here should be whether the AMLD4 and AMLD5 implemented in the Netherlands can be reconciled with the fundamental rights guaranteed by European law that are invoked in these proceedings. According to Privacy First, referring questions for a preliminary ruling is not the preserve of the bottom court.

3.2.4.
Privacy First states that it has an urgent interest in its claim, now that the UBO register is now filled with privacy-sensitive data and once it has been made public, it cannot be made confidential again with retroactive effect. On March 10, 2021, all European national UBO registers will also be linked together, after which hundreds of foreign authorities will also have access to Dutch UBO data, which, according to Privacy First, significantly increases the chance of a data breach and of data misuse. Privacy First refers to a recently discovered data breach in the Belgian UBO register and the recent hack of the Luxembourg UBO register by the French newspaper Le Monde. Privacy First also points out that commercial providers make it possible - although this was explicitly not the intention of the (European) legislator - to search the UBO register for the name of a UBO. According to Privacy First, the urgency concerns both the interest in enforcing the right to privacy of every Dutch person whose data has been processed or will be processed in the UBO register and Privacy First's own interest in the processing of and public access to the personal data of its own UBOs.

3.3.
The State has put forward a defense, which will be discussed below, insofar as necessary.

4The assessment of the dispute
4.1.
In these interim relief proceedings it must be assessed whether the Dutch legislation established in the context of the implementation of the AMLD4 and the AMLD5, insofar as it relates to the obligation to register personal data of UBOs in the UBO register and the ( partly) public access to these data must be (temporarily) suspended and / or there is cause to refer preliminary questions to the CJEU about the compatibility of the European directives on which this obligation or right rests with a) the Charter, b ) the principles of subsidiarity and proportionality as set out in the Treaty on European Union and c) the GDPR .

4.2.
In the first place, the State has argued that Privacy First no longer has an urgent interest in its claim due to the passage of time. The preliminary relief judge passes this argument. Although the Dutch UBO legislation was preceded by a lengthy European and Dutch legislative process and the Dutch implementation legislation was already adopted in June 2020, it cannot be said that Privacy First has waited such a long time to litigate that there is currently no urgent interest in its claim. there is (more). After all, the provisions of the Trade Register Act, which Privacy First specifically addresses in this procedure, only entered into force on 27 September 2020. Privacy First cannot be criticized for having waited for this to come into effect before initiating proceedings. It is not in dispute that Privacy First invited the State for consultation on 2 December 2020, therefore within a reasonable period after the entry into force of those statutory provisions, while submitting a draft summons for summary proceedings. As the Preliminary Relief Judge understands, no consultation took place between the parties. Privacy First subsequently issued a summons within a reasonable period of time after sending the aforementioned letter.

4.3.
With this preliminary relief proceedings, Privacy First primarily aims to bring about the inactivation and, alternatively, provisional inactivation, of two elements of the Dutch UBO legislation, namely the obligation laid down in the Trade Register Act to register personal data of UBOs in the UBO register and also in the Trade Register Act. regular public access to some of this data (the so-called general data). As the State has rightly pointed out, an allocation of both the primary and the alternative claim will result in the State no longer complying with its obligation under Article 30 of AMLD5 to establish a national public UBO register. The preliminary relief judge agrees with the State that as long as AMLD5 is in full force, the State cannot be put in a position where it manifestly contravenes that directive. As Privacy First itself acknowledges, the judgment on the legality of a European directive is reserved for the CJEU. It is not in dispute that the CJEU has not yet ruled on the legality of the public UBO register prescribed by AMLD4 and AMLD5. In that state of affairs, there is no room for the preliminary relief judge for interim relief proceedings to test the legality of the parts of the Dutch implementation legislation that have been questioned by Privacy First, which, after all, are a direct translation of mandatory provisions from AMLD4 and AMLD5. With the undeniable ineffectiveness of parts of the Trade Register Act as envisaged by Privacy First, After all, Privacy First also (indirectly) demands an opinion on the legality of AMLD4 and AMLD5, insofar as it concerns the obligation to set up a national public UBO register. In fact, Privacy First is ahead of the curve. To this extent, the present proceedings differs fundamentally from the judgment of the Interim Relief Judge of this court of 11 March 2015 (ECLI: RBDHA: 2015: 2498), cited by Privacy First, regarding the Retention of Telecommunications Data Act. In that case, the Preliminary Relief Judge was able to invalidate that law for interim relief because at that time the CJEU had already declared the European law basis of that law, namely the so-called Data Retention Directive 2006/24 / EC, to be non-binding. Also the appeal to the judgment of the court of February 5, 2020 (ECLI: RBDHA: 2020: 865), in which the so-called SyRI legislation has been declared non-binding due to violation of Article 8 ECHR, Privacy First is of no avail, since that legislation did not concern the implementation of a European directive. Privacy First's primary and subsidiary claim are already ready for rejection on the basis of the foregoing.

4.4.
Next is the more subsidiary claim of Privacy First to refer preliminary questions to the CJEU about the compatibility of AMLD4 and AMLD5 with Articles 7, 8, 16 and 52 paragraph 1 of the Charter, Article 5 of the Treaty on the European Union and the GDPR. According to the Preliminary Relief Judge, the State argues that there are no grounds for referring questions for a preliminary ruling, since it has not been shown that the Dutch UBO legislation is unmistakably non-binding. The preliminary relief judge does not follow the State in that argument. Putting questions to the CJEU for a preliminary ruling is precisely one of the instruments that can be used by the court to answer the question whether national legislation is unmistakably ineffective. After all, the fact that the CJEU declares a European directive underlying national legislation ineffective is a factor of great importance in answering that question (cf. the aforementioned case about the Telecommunications Data Retention Act). In this case, the preliminary relief judge may ask questions for a preliminary ruling if there are doubts about the legal validity of (parts of) the AMLD4 and AMLD5 underlying Dutch UBO legislation. It must therefore be assessed whether there is cause for such doubts with regard to the obligation arising from these guidelines to set up a (partly) public UBO register.

4.5.
The preliminary relief judge answers this question in the affirmative with regard to the (partly) public nature of the UBO register as prescribed by AMLD5. In doing so, the preliminary relief judge attaches great importance to the relevant critical advice of the EDPS of 18 March 2017 (Official Journal of the European Union, 2017 / C 85/04) with regard to the amendments proposed at the time to AMLD4. After all, the (Dutch translation of) this advice includes the following:

“The last and most important point, however, is that the changes significantly expand access to beneficial ownership information for both competent authorities and the public, as a policy tool to facilitate and optimize the enforcement of tax obligations. We see a lack of proportionality in the way such a solution is implemented, with significant and unnecessary risks to individual privacy and data protection rights.

(…)

66. We have assessed the proposal and believe that it should have ensured:

(…)

- that any restriction on the exercise of the fundamental right to privacy and data protection is provided for by law, respects the essence of that right and, subject to the principle of proportionality, only prescribed where necessary to pursue public interest objectives recognized by the Union to achieve or protect the rights and freedoms of others.

(…)

- for specially designed access to beneficial ownership information in compliance with the principle of proportionality, including to ensure that access is only obtained by entities in charge of enforcing the law. ”

4.6.
It cannot be ruled out in advance that, partly on the basis of this advice from the EDPS, the CJEU will come to the conclusion that the (partly) public character of the UBO register is not related in the light of the objective of the UBO register. with the principle of proportionality to be respected by the European legislator. This means that, in principle, the Dutch courts can submit preliminary questions to the CJEU in this regard. However, the preliminary relief judge will not ask questions about this. The reason for this is that the Tribunal d'arrondissement in Luxembourg already asked questions on this point to the CJEU on 13 November 2020. These questions largely correspond with the questions that Privacy First formulated in its summons with regard to the (partly) public nature of the UBO register. Privacy First has not made it clear that, and if so, how it serves its interests if the preliminary relief judge essentially submits the same questions to the CJEU. After all, the CJEU will not answer these questions in any other way. This means that Privacy First lacks sufficient interest in its claim to refer questions for a preliminary ruling, insofar as these relate to the (partly) public nature of the UBO register. The stay of these interim injunction proceedings pending the answers to those preliminary questions by the CJEU is not related to the nature and nature of the interim injunction proceedings, partly because of the length of the preliminary ruling procedure. After all, the CJEU will not answer these questions in any other way. This means that Privacy First lacks sufficient interest in its claim to refer questions for a preliminary ruling, insofar as these relate to the (partly) public nature of the UBO register. The stay of these interim injunction proceedings pending the answers to those preliminary questions by the CJEU is not related to the nature and nature of the interim injunction proceedings, partly because of the length of the preliminary ruling procedure. After all, the CJEU will not answer these questions in any other way. This means that Privacy First lacks sufficient interest in its claim to refer questions for a preliminary ruling, insofar as these relate to the (partly) public nature of the UBO register. The stay of these interim injunction proceedings pending the answers to those preliminary questions by the CJEU is not related to the nature and nature of the interim injunction proceedings, partly because of the length of the preliminary ruling procedure.

4.7.
Nor can the claim to submit preliminary questions about the obligation to register UBO data in the UBO register. In the preliminary opinion, Privacy First has insufficiently substantiated that the creation of a UBO register and the associated registration obligation violates the fundamental rights of UBOs guaranteed under European law or that the principles of proportionality and subsidiarity. Contrary to what Privacy First seems to argue, for the moment there is insufficient reason to doubt the effectiveness of the UBO register in preventing money laundering and terrorist financing through the financial system (even if it must be assumed that the information contained therein is not (partially) may be publicly accessible). Nor does the inadequately substantiated and thus implausible assertion by Privacy First give rise to doubt that there is a considerable chance that the currently protected additional data will be discarded due to data leaks and / or the imminent linking of European UBO registers.

4.8.
It follows from the foregoing that Privacy First's claim should be rejected. Privacy First, as the unsuccessful party, will be ordered to pay the costs of these proceedings. There is no ground for an order for subsequent costs, as the order for costs also results in an enforceable title for these subsequent costs (cf. HR 19 March 2010, ECLI: NL: HR: 2010: BL1116, NJ 2011/237).

5The decision
The preliminary relief judge:

5.1.
rejects the claim;

5.2.
orders Privacy First to pay the costs of these proceedings to the State within fourteen days after this judgment has been pronounced, so far estimated on the part of the State at € 1,683, of which € 1,016 in attorney's salary and € 667, - at court fees;

5.3.
determines that in the absence of timely payment, Privacy First owes the statutory interest on the legal costs;

5.4.
declares this cost order provisionally enforceable.

This judgment was rendered by mr. GHIJ Hage and pronounced in public by mr. SJ Hoekstra-van Vliet on March 18, 2021.