Access to the RBE: Transparency Put to the Test by Lawyers’ Professional Secrecy

A NEW OBLIGATION TO JUSTIFY ACCESS

Luxembourg Business Registers (“LBR”) now requires users to specify the precise reason for any consultation of information recorded in the Register of Beneficial Owners (“RBE”).

This new requirement implements Article 13(2bis) of the amended Law of 13 January 2019 establishing a Register of Beneficial Owners (the “RBE Law”).

This provision requires persons other than national authorities acting in the exercise of their duties to specify the reason for their consultation.

This requirement therefore strengthens the traceability of access to the RBE.

STRICTLY REGULATED ACCESS FOR LAWYERS

For lawyers, access to the RBE is nevertheless strictly regulated.

Pursuant to Article 11(1)(2) of the RBE Law, lawyers may consult this information for the purpose of carrying out due diligence measures:

• In respect of their clients, in accordance with legislation on the fight against money laundering and terrorist financing;
• In respect of entities with which their clients are likely to enter into a transaction.

PROFESSIONAL SECRECY REMAINS FULLY APPLICABLE

This new obligation to provide a reason for consultation must necessarily be reconciled with lawyers’ professional secrecy, which remains fully applicable.

The reason stated when accessing the RBE should therefore not make it possible to disclose, even indirectly:

• The identity of a client;
• The existence or nature of a mandate;
• The contemplated transaction;
• The identity of a potential counterparty.

An excessively detailed justification could, in itself, reveal confidential information relating to the matter concerned.

AN ESSENTIAL BALANCE

The increased traceability of RBE consultations therefore raises a key issue:

Ensuring compliance with the transparency requirements laid down by the RBE Law without undermining the confidentiality inherent in the lawyer-client relationship.

The reason for consultation must therefore be sufficiently precise, while ensuring that no information covered by professional secrecy is disclosed.

This balance is essential to safeguarding professional secrecy, a fundamental guarantee of the legal profession and of the rule of law.

In this context, consulting the RBE can no longer be regarded as a simple verification exercise, but rather as a process requiring the requirements of traceability to be reconciled with respect for professional secrecy.

We assist our clients in analysing their obligations under the RBE and the applicable compliance requirements, in order to secure their practices while preserving the confidentiality of protected information.

➡️ For any questions, please contact Nicolas Bernardy, Sébastien Rimlinger or Lucie Muzsynski.