Data and information of interest to the public are becoming more accessible, while a restriction of this politically desired broad accessibility is subject to extremely high requirements in favor of the protection of the purpose pursued with the publication. And according to a number of recent court decisions, this is even the case in the event of an abstract danger to the life or limb of those affected. 

In an earlier blog, we already presented court decisions that denied the deletion of sensitive personal data entered into the commercial register as well as a claim for the complete replacement of an old list of shareholders with a new one, even if these were outdated or went beyond what was required by law. The main argument in each case was that consistent data retention is the core of the principle of publicity under register law. Once facts or documents have been entered, they should not simply be deleted, but only corrected by new entries or new documents. Nevertheless, the Federal Court of Justice explicitly stated that it has not decided whether a different assessment can be required in special exceptional cases where there is evidence of a specific risk to life or limb. 

The Administrative Court in Cologne now dealt with this in its decision of July 17, 2024 (Ref. 13 K 5996/19) with regard to the possible restriction of access to the transparency register.

Since its introduction in 2007, the beneficial owners of legal entities and registered partnerships and some other legal structures are registered in the transparency register in accordance with the provisions of the German Anti Money Laundering Act (GWG). The aim is to prevent money laundering and terrorist financing. In this context, beneficial owners are natural persons who directly or indirectly hold 25% of the shares or control more than 25% of the voting rights. In the case of indirect control over one or more intermediary companies, the natural person must hold more than 50% of the shares or voting rights in this company in order to exercise control over the subsidiary. In addition to the authorities and courts provided for in the Anti Money Laundering Act and those obliged to be transparent in accordance with the transparency requirements, the transparency register has also been accessible to all members of the public since 2020 without the need to demonstrate a legitimate interest. In a ruling dated November 22, 2022 (Case C-37/20 and C-601/20), the European Court of Justice (ECJ) deemed this incompatible with the Charter of Fundamental Rights of the EU. The corresponding German implementation in Section 23 para 1 sentence 1 no. 3 GWG is therefore also incompatible with European law. As Section 23 para. 1 sentence 1 no. 3 GWG has not yet been amended despite the ECJ's ruling, the Ministry of Finance, which is the lead ministry, believes that the requirements of the ECJ shall be implemented on a transitional basis as part of an administrative practice that complies with EU law. Until further notice, members of the general public must therefore demonstrate a legitimate interest in accessing the information. 

The plaintiff - reportedly one of the wealthiest persons in Germany, who avoids publicity to the extreme, conceals his identity and does not give interviews, but has been the subject of several journalistic reports, including on public television - is the beneficial owner of a large number of companies. As such, he is entered in the transparency register. In accordance with Section 23 para 2 sentence 1 GWG, he had applied for the complete restriction of the possibility of access to the entries in the transparency register regarding all companies and foundations of which he is the beneficial owner - without success and now confirmed by the Cologne Administrative Court, which did not remedy his action against the administrative decision. 

Pursuant to Section 23 para. 2 sentence 1 GWG, the office keeping register shall restrict the access in full or in part at the request of the beneficial owner, if the beneficial owner demonstrates that, taking into account all circumstances of the individual case, the access conflicts with overriding interests of the beneficial owner that are worthy of protection. According to Section 23 para. 2 sentence 1 no. 1 GWG, interests worthy of protection exist in particular if facts justify the assumption that the access to the information would expose the beneficial owner to the risk of becoming a victim of a catalogue crime. Catalogue crimes include fraud, extortion, hostage-taking, blackmail and crimes against life and limb, as well as coercion and threats. If a two-stage examination shows that, firstly, the beneficial owner has interests worthy of protection and, secondly, taking into account all the circumstances of the individual case, these interests outweigh the interests in accessing the transparency register, the application for restriction must be granted. The authority maintaining the register has no discretion in the examination with regard to either level; it only has discretion as to whether, in the event of an affirmative decision, access is restricted in full or in part. 

In the case decided, the Administrative Court of Cologne already denied the existence of interests worthy of protection. It held that the existence of an abstract danger of becoming a victim of one of the catalogue crimes mentioned shall be sufficient for this, whereas a concrete danger in the sense of police law, i.e. a sufficiently probable commission of a crime in the foreseeable future, shall not be required, as the application to restrict access would then always come too late. Besides, the existence of an abstract danger is generally affirmed by the court in the case decided: The court held that the plaintiff is one of the extremely wealthy individuals whose relatives are always exposed to at least an abstract danger of becoming a victim of one of the relevant criminal offenses. However, the court found that it was also necessary that the abstract risk is established or significantly increased by a possible inspection of the transparency register. Otherwise, the possibility of inspection would not be causal for the existing abstract danger. The court ruled that the plaintiff failed this test: The plaintiff's entries in the transparency register (name, date of birth, place of residence and nationality) as well as the fact that he is extremely wealthy as owner of various shareholdings (type and scope of economic interest) can according to the court be found in the commercial register or is otherwise publicly known and can be determined by the simplest of searches. Based on national journalistic reporting, among other things, there is therefore a sufficiently condensed and reliable basis of information, which is not expanded by the accessibility of the data recorded in the transparency register. An increase of the already existing abstract risk caused by this data is therefore not apparent.

It will be interesting to see how courts will judge applications for restrictions in less colorful cases. While in the case of one of the wealthiest citizens, the information about his considerable assets, which could potentially provoke catalogue crimes, is indeed sufficiently known even without the transparency register, as is the personal data otherwise contained in the register in particular regarding the place of residence, the assessment could well be different for numerous members of the wealthy middle class. It is true that in these cases, too, exceptional circumstances must be proven that cause a danger that significantly exceeds the general risk of life. However, the same should apply to a somewhat lesser extent as in the case decided with regard to the affirmation of an abstract danger, namely that extremely wealthy persons are always exposed to the abstract danger of the relevant criminal acts. And in the absence of comparable public reporting, the transparency register could indeed certainly lead to a significant increase of the aforementioned abstract risks in these "less well-known" cases. Especially since, as noted at the beginning, the Federal Court of Justice in the cases decided on the deletion of data from the commercial register explicitly left open the possibility of assessing corresponding claims differently in the event of a risk to life or limb. If the sensitive data could then ideally not be gained from either the commercial register or the transparency register, the argument that an abstract risk of becoming a victim of a catalogue crime would at least be reduced could certainly be heard.