E-10/19 Bergbahn Aktiengesellschaft Kitzbühel v Meleda Anstalt

EFTA-case

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Deadlines: Motivation ministry:          23 January 2020
Written observations:                          9 March 2020 (ultimate deadline)

Keywords : beneficial ownership, anti-money laundering, adequate information

Subject :

-           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 the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC

-           The Fifth Anti-Money Laundering Directive, Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU

 

Facts of the case:

The applicant, Aktiengesellschaft, is a public limited company under Austrian law, registered in the commercial register maintained by Innsbruck Regional Court, with a registered office in Austria. The defendant, Meleda Anstalt, is an establishment under Liechtenstein law, registered in the Liechtenstein commercial register, with a registered office in Liechtenstein. Its board members are the lawyer Mag. iur. Stefan Mätzler and Ibex Trust AG. By letters of 22 and 28 February 2018 and 5 March 2018, making reference to the obligations on the applicant pursuant to the Anti-Money Laundering Directive now applicable in Austria, the applicant’s legal representatives requested the defendant to disclose its beneficial owners. The defendant answered that Meleda Anstalt is in principle eligible to be considered an intermediary for indirect beneficial ownership by reason of the fact that it currently holds more than 25% of the shares in Bergbahn AG Kitzbühel. However, a further requirement for the existence of beneficial ownership within the meaning of the relevant Act is the fact that a natural person exercises direct or indirect control over Meleda Anstalt. A control relationship of that kind does not exist within Meleda Anstalt. The criteria are therefore not satisfied. Section 2 of the Beneficial Owners Register Act indicates that in the absence of a beneficial owner determined in accordance with the above criteria, details shall be provided of the natural persons who belong to the top management level of the entity. Consequently, in the present case, the board of Meleda Anstalt, Mr Mag. Stefan Mätzler must be entered in the Beneficial Owners Register. The applicant was not satisfied with that response and brought an action on 16 May 2018 before the Princely Court in Liechtenstein seeking an order to oblige the defendant to provide and produce to the applicant specific information and proof concerning its beneficial owner(s). By judgment of 27 March 2019, the Princely Court dismissed the action. It reasoned that in providing the letter of 30 April 2018 the defendant had already satisfied its obligations. The applicant appealed against this judgment. By its appeal, it seeks to have the judgment under appeal modified such that its claim is granted in full. In essence, the question is whether it suffices if a legal person, which is the beneficial owner of another legal person, merely communicates to the latter its own beneficial owner or must, in addition, the underlying documents such as articles of association, etc. also be produced, in order to ensure that the legal person obliged pursuant to Article 30(1) of the Fourth and Fifth Anti-Money Laundering Directives has fulfilled its obligations to obtain adequate information.

 

Request for an advisory opinion:

How must Article 30(1) of Directive (EU) 2015/849 be interpreted?

Section I:

1. How must the provision that incorporated and other legal entities are required to obtain adequate information on their beneficial ownership be interpreted? Does it suffice, as a rule, that the obliged entity is notified of who the beneficial owner is or must, in addition, also the underlying documents with evidential value (articles of association, etc.) be produced?

2. In the event that mere provision of information does not suffice but, as a rule, also the underlying documents (articles of association, etc.) must be produced: Is this situation in any way altered where the beneficial owner is a legal person with a registered office in an EEA State and, thus, is also subject to the provisions of Directive (EU) 2015/849? Does the mere provision of information suffice at least in this case?

3. If Question 2 is answered in the negative: Is this situation in any way altered where the board of the beneficial owner is a lawyer, notary or a (business) trustee, who under national law, is under an obligation, subject to the threat of a severe penalty or, potentially, withdrawal of the authority to practice in the case of non-compliance, to provide complete and accurate information and to whom the national legal order accords particular confidence?

4. If Question 3 is also answered in the negative and thus an obligation to produce the underlying documents (articles of association, etc.) exists in every case:

a) What is the minimum extent of documents to be produced having regard to the principle of data minimisation specified in Article 5(1)(c) of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)?

b) How must the non-existence of indirect ownership or the non-existence of ultimate control by a natural person within the meaning of Article 3(6)(b)(v) and Article 3(6)(c) of Directive (EU) 2015/849 be proven (in light of the maxim that there is no obligation to prove negative circumstances - “negativa non sunt probanda”)?

Section II. Regardless of the answers given to the questions set out in section I:

1. How must the entity obliged to obtain appropriate information pursuant to Article 30(1) of Directive 2015/849 proceed where the beneficial owner refuses to provide information and/or - depending on the answers given to the questions set out in Section I – to produce the underlying documents or does not provide accurate and current information: Is the obliged entity then obliged at their own risk and expense to bring legal action against the beneficial owner for provision of information or, if available, to bring a similar legal action provided for under national law or can it be satisfied with the information provided to it by the beneficial owner or the refusal to disclose information? Must in this case, if need be, Article 3(6)(a)(ii) of Directive (EU) 2015/849 be applied mutatis mutandis, which refers to "having exhausted all possibilities", in other words, must the necessary exhaustion of all possibilities be understood as including the bringing of legal action at one's own risk and expense?

2. If the previous question is answered in the affirmative (i.e. that an obligation to bring legal action exists): Must then, if needs be, Article 3(6)(a)(ii) of this Directive be applied mutatis mutandis, so that an obligation to bring legal action at one’s own risk and expense exists where there are grounds for suspicion or there is any doubt (even if only the slightest) in relation to the information provided?

 

Cited (recent) case-law: /

Policy area: FIN