Tilburg Institute for Family Business

Is the EU a curious buzz?

Published: 03rd September 2019 Last updated: 01st June 2023

The doctoral candidate has the floor

Pjotr Anthoni: The fundamental right to privacy in EU and Dutch legislation

Is the EU a curious buzz?

It is important that citizens trust the laws to which they are bound. This contributes to the will to comply and a lack of such confidence undermines that drive. That trust often depends on the fair and equitable functioning of the legislation, as perceived by citizens and whether it has been properly drafted so that interests have been measured and weighed up. This applies to all parts of the population; everyone wants to be treated fairly and equally (insofar as they are equal).

With the political and social balancing of transparency and privacy, I (increasingly) see shortcomings in the development of the legislation. Because the interests are not sufficiently measured and balanced, a perceived unfair and inequitable effect becomes difficult to explain. The far-reaching transparency that society seems to demand and that politics imposes on everyone as a seemingly automatic answer to this, encroaches upon the privacy of those involved. Whether this infringement is permitted is not or insufficiently tested and substantiated. This directly motivated me to start my Phd research.

The first time I became acutely aware of this going wrong was with the fourth EU Anti-Money Laundering Directive. This directive obliges EU Member States to introduce a register of Ultimate Beneficial Owners of Entities (UBO-register). Initially, the Member States had the option to create a more private UBO register, but as a result of the tightening up with the fifth anti-money laundering directive, all UBO registers must be public.

Internationally as well as internally, the EU has committed itself to respecting the right to privacy, as laid down in, amongst others, Article 8 of the European Convention on Human Rights (ECHR), Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and Article 16 of the Treaty on the Functioning of the European Union. It was immediately clear to me that the public form of the UBO-register infringes the right to privacy and then it has to be checked whether this infringement is permitted. The assessment as to whether the infringement of the right to privacy is permitted, consists of three main parts:

  • the infringement or restriction of the fundamental right to privacy must have a legal basis that is known and foreseeable to the citizen;
  • the breach must serve a legitimate interest, Article 8(2) ECHR lists the interests for this purpose; and
  • the infringement must be necessary to serve that legitimate interest.

On the basis of the latter condition, the legislator is held to assess whether there is an urgent need to introduce the measure (necessity criterion). This criterion includes an assessment of whether the restrictive measure is reasonable in relation to the objective pursued (proportionality) and whether there is no less harmful means of achieving the objective (subsidiarity).

The European Data Protection Supervisor, in her opinion on the fifth anti-money laundering directive, is particularly critical about making the UBO register public: ‘We see, in the way such solution is implemented, a lack of proportionality, with significant and unnecessary risks for the individual rights to privacy and data protection'. But even this opinion is not adequately addressed by the legislative bodies of the EU, so that due to a lack of scrutiny it remains unclear whether the infringement is lawful.

In his book 'Groter denken, kleiner doen' (Amsterdam: Prometheus 2019), Mr Tjeenk Willink recently also called upon professionals to defend the democratic legal order. With my dissertation I hope to contribute to this and to pave the way for a clear, workable assessment test for the right to privacy that will actually be carried out.