Written by Charles Searle, Guest Author, Associate (Secondee)
Transparency or privacy – which of these priorities prevails? A ruling on 22 November 2022 by the Court of Justice of the European Union (CJEU) might mean privacy prevails when it comes to the question of whether or not a public register of beneficial ownership will be legislated for in Bermuda any time soon.
On 12 July 2020, the Bermuda government made a commitment to "bring forward to the Legislature proposals to establish public access to beneficial ownership data of companies held on a central register" by January 2023. This was made in the context of the UK issuing a draft order1 requiring that British Overseas Territories (BOTs) introduce publicly accessible registers of beneficial ownership in their respective jurisdictions by 2023.
Yet, more than three years on from this statement and now in the final quarter of 2023, there appears to be no further progress in the establishment of a publicly accessible beneficial ownership register in Bermuda (beyond the private register currently accessible only to the Bermuda Monetary Authority, or BMA (and soon the Registrar of Companies (ROC)2), and other law enforcement agencies).
This article explores whether or not such a public register will ever be implemented in Bermuda.
For almost a decade now, there has been a co-ordinated international drive to introduce legislation to obtain information about the individuals who own or control companies and partnerships in their jurisdiction (so-called "beneficial owners") and to maintain such information on a public register, so as to increase transparency and end corporate secrecy.
Whilst there is recognition that beneficial ownership registers are a necessary tool in reducing financial crime, the controversy lies in whether such personal information should be accessible to any member of the public, at no cost, and without needing to give a reason or register themselves.
This was the question at the heart of the case before the CJEU towards the end of last year (C-37/30), the ruling for which has seemingly put the brakes on – and possibly even completely stalled – efforts for there to be a publicly available register of beneficial ownership in Bermuda (and elsewhere).
Why is the CJEU ruling significant?
The CJEU declared in its ruling that the provision in the EU's Fifth Anti-money Laundering Directive (2018/843) (5AMLD), which removed the need for individuals to demonstrate a "legitimate interest" in order to access registers of beneficial ownership, was invalid.
In the CJEU's view, providing the general public with access to information on beneficial ownership, without any restriction, interferes with and contravenes the fundamental right to respect for private life and to the protection of personal data, enshrined in Articles 7 and 8 respectively of The Charter of Fundamental Rights of the European Union:
"A fair balance should be sought in particular between the general public interest in the prevention of money laundering... and the data subjects' fundamental rights".
In summary, the CJEU determined that limitations should be placed on who is able to find out information about a beneficial owner and that the "legitimate interest" in 4AMLD from 2015 should be reinstated so as to uphold the EU's data protection legislation and the right to privacy in the Charter.
A beneficial owner's right to privacy as regards their financial affairs and ownership of companies was paramount (and there could be still be frameworks maintained to ensure that only those who need to have access to the relevant information).
Where to from here regarding a public register in Bermuda?
The Ministry of Finance in Bermuda has acknowledged the ruling and noted that it will "monitor developments" – but not much more than that.
Why a public register might yet be introduced in Bermuda – the case in favour
It seems unlikely that the UK will row back from its championing of corporate transparency and encouragement of, and requirement for, the BOTs to follow its lead.
The UK was the first to develop its own laws unilaterally to introduce a public register in the form of the Persons of Significant Control (PSC) regime in 2016 (and before it was required to do so by the EU when it was a member) and has gone further still with the introduction of the Economic Crime (Transparency and Enforcement) Act 2022, which, broadly speaking, gives unrestricted public access to the register containing details of overseas entities owning UK land. Moreover, the UK Government confirmed on 30 January 2023 that it considers the PSC regime and the Register of Overseas (ROE) regime are proportionate and fully compliant with the European Convention on Human Rights (ECHR).
Against this backdrop, there is an argument that the UK will, pursuant to its self-imposed obligations under SAMLA 2018, insist that the BOTs fulfil their commitments to implement transparency by 2023 by adopting regimes similar to the PSC regime, or, even, take a step further, and legislate for the BOTs, by issuing the draft order in final form.
It is also worth bearing in mind the notification by the ROC on 11 July 2023 that the current beneficial ownership register is proposed to be transferred from the BMA to the ROC in order "to streamline and strengthen the beneficial ownership legislative framework" and that there will be a consultation paper to "detail the proposed changes (including public access)" (emphasis added).
Why a public register will not be introduced in Bermuda – the case against
The Bermuda government stated in July 2020 that it would only make such a register of beneficial ownership public once it had been adopted as a global standard.
The momentum, however, now seems to be shifting towards such registers no longer being the global standard (which they were in 2020 and before the CJEU ruling).
Indeed, since the CJEU ruling, several EU member states, including Germany, Luxembourg, the Netherlands, Austria and Belgium, have ceased public access to their beneficial ownership registers.
More relevant to Bermuda and its relationship with the UK, the Crown Dependencies released the following statement on 22 December 2022:
"In light of this CJEU judgment, implementation of [public beneficial ownership register] legislation will be delayed for a short period to enable consideration of its impact and obtain specialist legal advice. In respect of extending access beyond obliged entities, we intend to obtain expert legal advice on all relevant issues and, in due course, intend to review the public commitment in line with that advice and any recent development of international best practice".
One could argue that, as public registers are not currently the global standard (and nor do they look to be for some time yet), it is not necessary and disproportionate for Bermuda to take steps to introduce one.
The current register, which is available to the BMA (and soon the ROC) and other regulatory bodies, continues to ensure that Bermuda "fulfil[s] its international obligations and adhere[s] to global standards regarding beneficial ownership"3. Bermuda also already ranks highly across the metrics for global corporate transparency (such as the white lists of the OECD and the EU).
Moreover, the Bermuda government said in July 2020 that any decision will be "guided by a necessary adherence to the fundamental rights and freedoms enshrined in the Bermuda Constitution".
In the light of this, and bolstered by the CJEU ruling, Bermuda could point to the aim of protecting a person's right to privacy as being the prevailing argument, especially in the context of data protection legislation coming into force on 1 January 2025 in the form of the Personal Information Protection Act (PIPA).
Given public registers are not the global norm, the most likely outcome seems to be that Bermuda will keep its register private and accessible only to the BMA or, shortly, the ROC (and other regulatory bodies), unless the UK takes steps to insist on implementation of public access.
Global standards are still being adhered to in this way in that regulatory authorities have access to the information they need to combat money-laundering, etc. – the public simply do not need access.
There may, however, be a compromise between the UK and Bermuda whereby the current register is extended to authorised recipients who can prove they have a "legitimate interest", thus bringing the requirement into line with the position under EU law as a barometer of the current "global standard". It would also be reflective of the United States, which is introducing a requirement to file reports of beneficial ownership, effective from 2024, and make them available to those with a legitimate interest.
The UK's Trust Registration Service Guidance could provide a potential solution as to how to define what a "legitimate interest" is:
"A legitimate interest is where the requester shows they are involved in an investigation into money laundering or terrorist financing, and the requester shows they are requesting the information in order to further an investigation into a specified suspected instance of money laundering or terrorist financing."
This would provide an appropriate limitation on any member of the general public being able to access the register and would ensure that global standards on corporate transparency continue to be followed by Bermuda.
In short, the prevailing view is that including a fetter and restricting public access to those who can meet the threshold of demonstrating a "legitimate interest" appears to be a reasonable way of achieving the goals of beneficial ownership registers without interfering with a person's right to privacy. With this in mind, the UK may quietly drop its requirement for Bermuda and the other BOTs to introduce public registers, and instead, the UK may continue to be one of the only countries with a public register, at least for the time being.
Beneficial ownership registers are here to stay; unfettered public access to them is not.
1 In accordance with Section 51 of the Anti-money Laundering Act 2018 (SAMLA 2018).
2 Notification by the Registrar of Companies on 17 July 2023.
3 Statement by the ROC on 17 July 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.