Access to the Register of Beneficial Owners
The impossibility for a third party to have access to the names of companies for which a specified individual is an economic beneficiary
The Register of Beneficial Owners (RBE) allows any person to search for the name of the beneficial owner of a specific company. In other words, the search is carried out only by company name in order to determine the economic beneficiary of the company.
What if the debtor is a individual and the creditor wishes to know the companies in which his debtor is interested, in particular with a view to carrying out a possible attachment on all the debts that a company might hold for its shareholder / partner ?
As the RBE does not allow a search by name of economic beneficiary to be carried out to determine the companies in which a natural individual is an economic beneficiary, case law had occasion to resolve the issue in a case in which the LBR, in its capacity as manager of the Register of Beneficial Owners (RBE), was summoned for the purpose of an injunction to communicate the name as well as the registration number in the Trade and Companies Register of the company or companies in which the debtor would be an economic beneficiary.
The request was based in particular on the Law of 13 January 2019 establishing a Register of Beneficial Owners subject to any applicable legal basis(s).
Following a judgment of 28 February 2020, the Second Chamber of the District Court of and in Luxembourg sitting in commercial matters declared the request inadmissible ("irrecevable") in the absence of a legal basis providing for such access for any person on the following grounds :
"It results from the parliamentary work on the Law of 2019 that when adapting the text of the bill (in order to take into account the developments resulting from Directive (EU) 2018/843 amending Directive (EU) 2015/849), it was proposed to align the modalities of access in consultation with the general public with those provided for the authorities, while leaving "to a Grand-Ducal regulation ("Règlement Grand-Ducal") the task of determining the search criteria which may vary according to the different categories of authority and persons" (see comments, page 4 of the governmental amendments of 13 July 2018).
In this logic, the GDR of 2019 ("Règlement Grand-Ducal de 2019") determined access to the information contained in the RBE by expressly distinguishing between a search open to the general public which is carried out "by the name, business name, name or registration number of the entity registered in the Trade and Companies Register" (Article 7 (2)) and the search carried out by the national authority which is carried out by "the name, business name, name or registration number of the entity registered in the Trade and Companies Register or by beneficial owner".
Consequently, and by virtue of a deliberate choice made by the legislator, the option of searching by beneficial owner is not open to the general public.
Neither the 2019 Act ("loi de 2019") nor the Regulations ("Règlement Grand-Ducal") provide for any exception or procedure allowing a member of the general public to be granted such access.
In the absence of a legal basis to summon the LBR before the District Court sitting in commercial matters in order to order the disclosure of companies in which a specific individual is a beneficial owner, the BANK's request is to be declared inadmissible".
It is therefore not possible to carry out a search by name of beneficial owner, even by judicial means and even if the applicant has a legitimate interest in requesting it. Only certain authorities expressly appointed by law or by the Grand-Ducal Regulation ("Règlement Grand-Ducal") can carry out such a search.
(Commercial Judgment 2020TALCH02/00366 of 28 February 2020; docket number TAL-2020-00979).