Opinion of the European Data Protection
Supervisor on a Commission Proposal amending Directive (EU)
2015/849 and Directive 2009/101/EC - Access to beneficial ownership
information and data protection implications.
As a reminder, the Commission proposal seeks to amend
the anti-money laundering Directive and Directive 2009/101/EC in
the fight against tax evasion, protection of investors and fight
against abuses of the financial system. New amendments aim to bring
the AML Directive up to speed with technical and financial
innovation and new means to perform money laundering and terrorism
financing.
The amendments, in particular, raise questions as to
why certain forms of invasive personal data processing, acceptable
in relation to anti-money laundering and fight against terrorism,
are necessary out of those contexts and on whether they are
proportionate.
The EDPS was not consulted before the adoption of the
proposal. Its opinion was subsequently requested by the Council,
which adopted on 19 December 2016 a compromise text on the
proposal.
After having reviewed the impact of the
proposal on fundamental rights as regards the respect for
privacy and data protection, the EDPS considered that the proposal
should:
- ensure that any processing of personal data serve a
legitimate, specific and well identified purpose and be
linked to it by necessity and proportionality. The data controller
performing personal data processing shall be identified and
accountable for the compliance with data protection
rules;
- ensure that any limitation on the exercise of the
fundamental rights to privacy and data protection be provided
for by law, respect their essence and, subject to the principle
of proportionality, enacted only if necessary to achieve objectives
of general interest recognised by the Union or the need to protect
the rights and freedoms of others;
- ensure a proper assessment of the
proportionality of the policy measures proposed in relation to
the purposes sought, as emergency-based measures that are
acceptable to tackle the risk of terrorist attacks might result
excessive when applied to prevent the risk of tax
evasion;
- put into place safeguards that would have granted a
certain degree of proportionality (for example, in setting
the conditions for access to information on financial transactions
by FIUs);
- design access to beneficial ownership
information in compliance with the principle of proportionality,
inter alia, ensuring access only to entities who are in charge of
enforcing the law.