CJEU (AG) ¦ Beneficial Ownership, Trusts and “Similar Legal Arrangements”

What the Across Fiduciaria Opinion Means for AML Practice

The fight against money laundering in Europe continues to revolve around one key lever: transparency of beneficial ownership. The recent Opinion of Advocate General Richard de la Tour in the joined cases C‑684/24 and C‑685/24 (Across Fiduciaria and Others) is a major step in clarifying how far this transparency can go for trusts and “similar legal arrangements” – and what safeguards must exist for privacy and effective judicial protection. For financial crime professionals, this Opinion is an important roadmap for how courts are likely to reconcile the EU’s anti‑money‑laundering regime with data protection and fundamental rights concerns after the landmark Luxembourg Business Registers judgment.

The core question: how far can transparency go for trusts and similar structures?

The cases arise from challenges by Italian fiduciary companies to Italian rules implementing Article 31 of Directive (EU) 2015/849 (the Fourth AML Directive as amended by the Fifth AML Directive, together “Directive 2015/849”).

Italy decided to treat certain “trust mandates” (mandati fiduciari) as “similar legal arrangements” to trusts. That means:

• They must identify and register their beneficial owners in a central register.
• Certain persons with a “legitimate interest” may access that information.
• Beneficial owners can request exemptions from disclosure in “exceptional circumstances”, but decisions are made by a non‑judicial body (a chamber of commerce), with judicial review only later.

The referring Italian court asked the Court of Justice to clarify four main issues:

1. Is the undefined EU concept of “similar legal arrangements” valid and how should it be understood?
2. Can Italy lawfully treat fiduciary “trust mandates” as similar legal arrangements?
3. Is the access regime based on “legitimate interest” compatible with privacy and data protection rights?
4. Is it acceptable that a non‑judicial body decides on exemptions from access, with a judicial remedy only afterwards?

The Advocate General answers essentially “yes” to all four – but with important nuances that compliance and legal teams need to understand.

Bastian Schwind-Wagner _Follow

"The Across Fiduciaria Opinion confirms that the EU’s push for beneficial ownership transparency around trusts and similar legal arrangements is compatible with fundamental rights, if implemented carefully. It steers the system away from indiscriminate public access and towards targeted access based on demonstrable AML‑related interests.

For practitioners, the message is that complex fiduciary products will remain under scrutiny and are likely to be treated as “similar legal arrangements” whenever they can mask beneficial owners. At the same time, beneficial owners and intermediaries gain clearer grounds to argue for exemptions and court protection in genuinely high‑risk situations."

“Similar legal arrangements”: a flexible but valid EU concept

The fiduciary companies argued that the notion of “similar legal arrangements” in Article 31 of Directive 2015/849 is too vague and thus breaches legal certainty, Article 114 TFEU (legal basis for harmonisation), Article 288(3) TFEU (binding nature of directives) and the principle of effectiveness.

The Advocate General disagrees. He considers the concept valid and consistent with the directive’s legal basis and structure.

First, the objective: Directive 2015/849 seeks to prevent use of the financial system for money laundering and terrorist financing. To meet that objective, transparency rules cannot be limited to trusts stricto sensu in the few Member States where they exist. They must also capture functionally similar arrangements that can be used to conceal beneficial ownership.

Second, the legislative design: the directive deliberately leaves Member States to identify and notify to the Commission the categories of “similar legal arrangements” under their own law, which the Commission then consolidates and publishes in the Official Journal. The Advocate General stresses that the EU legislator enjoys wide discretion under Article 114 TFEU, especially in technically complex fields like financial crime prevention.

Crucially, the consolidated EU list of similar arrangements is not binding in itself; it is declaratory. It helps other Member States recognise such arrangements but does not relieve courts of their role in assessing, case by case, whether a particular structure is indeed similar to a trust.

For practitioners, the key point is this: “similar legal arrangements” is an autonomous concept of EU law, shaped by function and structure, but implemented via national identification and notification. That flexibility is not a defect; it is a feature chosen deliberately to ensure coverage of diverse legal vehicles across Member States.

When is an arrangement “similar” to a trust? The case of Italian trust mandates

The second major issue is whether Italian “trust mandates” of fiduciary companies can be treated as similar legal arrangements within the meaning of Article 31.

Here the Advocate General takes a functional approach aligned with the Hague Trusts Convention. Trusts are not defined in Directive 2015/849 itself, so it is logical to look at the definition in the 1985 Hague Convention on the Law Applicable to Trusts and on their Recognition, which describes a trust as a legal relationship where assets are placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose, with key features such as:

• The trust assets are not part of the trustee’s own estate.
• Title to the trust assets is in the name of the trustee or a person acting on the trustee’s behalf.
• The trustee manages or disposes of the assets in accordance with the terms of the trust.

A transfer of ownership is not strictly required. What matters is the separation between legal control/title and beneficial enjoyment, which allows the real interest holder to be hidden behind a nominal owner.

The Advocate General highlights that if an arrangement:

• results in assets being held or registered in the name of another person; and
• thereby conceals from third parties the identity of the beneficial owner,

then it performs a function similar to a trust and is capable of being a “similar legal arrangement” under Article 31.

Italian trust mandates, as described by the referring court, involve the fiduciary company holding assets in its own name on behalf of clients. To third parties, the fiduciary appears as the owner; the real beneficiary is not apparent. In that sense, the mandates present the same transparency risk as trusts.

The Advocate General concludes that Directive 2015/849 does not preclude Italy from classifying such trust mandates as similar legal arrangements, provided their structure and functions indeed lead to assets being placed in another person’s name. The fact that fiduciary activities are already supervised under other national rules and subject to existing obligations does not shield them from the additional transparency regime under Article 31.

For AML and compliance officers, the message is clear: if a product, mandate or structure creates a split between legal title and beneficial enjoyment and can be used to obscure the true owner, it is a strong candidate to be treated as “similar to a trust”, regardless of the underlying civil‑law classification or existing regulatory oversight.

From “general public” to “legitimate interest”: recalibrating access after Luxembourg Business Registers

The most sensitive part of the Opinion concerns access to beneficial ownership information and its compatibility with privacy and data protection.

In its 2022 Luxembourg Business Registers judgment, the Court of Justice declared invalid the rule (in Article 30 of Directive 2015/849 as amended) giving the general public unrestricted access to beneficial ownership information of companies. The Court found that such access amounted to serious interference with Articles 7 and 8 of the Charter and that the interference was neither strictly necessary nor proportionate.

Across Fiduciaria engages the other leg of the transparency regime: Article 31(4) on access to information about the beneficial ownership of trusts and similar arrangements. Here, public access was never as wide. Access is limited to:

• competent authorities and FIUs;
• obliged entities; and
• “any natural or legal person that can demonstrate a legitimate interest”.

The Advocate General notes two crucial differences from the regime invalidated in Luxembourg Business Registers.

First, the scope of data: For trusts and similar arrangements, the directive sets out an exhaustive list of information accessible to persons with a legitimate interest: name, month and year of birth, country of residence and nationality of the beneficial owner, and the nature and extent of the beneficial interest. Member States may allow access to additional data (such as full date of birth or contact details) but only “under conditions” and in line with data protection rules.

This closed list, together with constrained possibilities for additional data, makes the interference more precisely limited and legally foreseeable than in the company‑register context, where the directive provided a non‑exhaustive minimum and left more room for expansion.

Second, and more importantly, the access gatekeeper is not “the general public” but the concept of “legitimate interest”. While the directive does not define this concept, it clearly envisages that Member States will specify it in their national law, subject to constraints laid down in recital 42 of Directive 2018/843. Recital 42 explicitly states that:

• legitimate interest should not be limited to pending administrative or judicial proceedings; and
• it should cover preventive work in AML/CFT and related offences by NGOs and investigative journalists, where appropriate.

The Advocate General stresses that the validity of the concept must be assessed in light of whether it can be interpreted in a way that respects the Charter. Unlike “the general public”, “legitimate interest” is inherently selective and allows for targeted access focused on AML/CFT objectives.

He proposes that:

• the concept must be interpreted in line with the directive’s purpose – preventing money laundering and terrorist financing through enhanced transparency; and
• the combination of EU‑level guidance (objectives and recitals) and national specifying rules can deliver a fair balance between transparency and fundamental rights.

On that basis, the Advocate General considers Article 31(4)(c) valid when read in light of Articles 7, 8 and 52 of the Charter. The limitation on rights is provided by law, pursues a legitimate objective (AML/CFT), and can be shaped through interpretation so as to be necessary and proportionate.

Italy’s narrow definition of “legitimate interest”: compliant or too restrictive?

Italy chose to concretise “legitimate interest” with a relatively strict formulation. Under Article 21(4)(d‑bis) of Legislative Decree No 231/2007, access for private individuals and entities representing diffuse interests is allowed only where:

• the applicant has a “relevant and differentiated legal interest”;
• the interest is direct, concrete and current;
• knowledge of beneficial ownership is necessary to assert or defend an interest corresponding to a legally protected situation; or
• the applicant has concrete, documented evidence that beneficial ownership and legal ownership do not match; and
• for entities representing diffuse interests, the interest pursued must not simply coincide with the personal interest of individuals in the represented category.

The referring court asked whether, after Luxembourg Business Registers and in light of the Charter, this narrow and legally technical notion of legitimate interest is still permissible under EU law.

The Advocate General answers that Article 31(4)(c) does not preclude such a definition, so long as national authorities interpret and apply it consistently with the directive’s objectives and fundamental rights.

He emphasises two points:

• Member States do not have a completely free hand. They must define legitimate interest in a way that reflects the AML/CFT purpose of the directive and takes account of actors such as NGOs and investigative journalists who may have a legitimate preventive role.
• Authorities applying the national definition are required, under settled case law, to interpret it as far as possible in line with the directive and the Charter, striking a fair balance between transparency and privacy/data protection. That means they cannot systematically refuse access in practice, nor can they allow de facto general access under the guise of a “legitimate interest”.

At the same time, the Advocate General acknowledges that a case‑by‑case balancing is inevitable. He draws a parallel with data‑protection case law, where assessing whether the legitimate interests of a controller or third party outweigh the rights and freedoms of the data subject always depends on the specific circumstances.

For financial crime practitioners, this is a signal that:

• the “legitimate interest” window is real and cannot be rendered illusory by an excessively restrictive national definition; but
• Member States retain latitude to use demanding legal criteria and documentary thresholds, as Italy has done, provided AML/CFT objectives and Charter rights remain properly balanced in practice.

Who decides on exemptions – and when must courts step in?

A further sensitive point concerns the “exceptional circumstances” exemption in Article 31(7a). Under this provision, Member States may, in exceptional cases, allow beneficial owners to obtain an exemption from access to all or part of their data where disclosure would expose them to disproportionate risk (fraud, extortion, violence, etc.) or where they are minors or legally incapable.

The directive requires that:

• exemptions be granted case by case, after a detailed evaluation of the exceptional nature of the circumstances; and
• rights to an administrative review and to an effective judicial remedy be guaranteed.

In Italy, this evaluation is centralised at the Chamber of Commerce with geographical jurisdiction. The chamber:

• receives and decides on access requests;
• notifies the beneficial owner, who may submit a reasoned objection within 10 days; and
• decides, balancing the risk invoked by the beneficial owner against the interest in access.

Only afterwards can the beneficial owner go to court. The fiduciary companies argued this is inconsistent with Article 31(7a) and Article 47 of the Charter because decisions by an administrative body can lead to irreversible disclosure before judicial control.

The Advocate General’s response introduces an important distinction.

First, what is the “case‑by‑case” assessment about? The text allows Member States to provide for an exemption “from such access” on a case‑by‑case basis. The Advocate General interprets this as an evaluation focused on the situation of the beneficial owner, not the identity or individual characteristics of each person requesting access.

He reasons that:

• for certain categories (minors, legally incapable persons), the risk status is intrinsic and cannot change depending on who is requesting access;
• if the case‑by‑case evaluation was tied to each access request, both the beneficial owner and the applicant would need to know each other’s identity during administrative and judicial review, frustrating the very aim of confidentiality and increasing the risk of pressure or reprisals;and
• directive‑level references to administrative and judicial review relate to decisions on exemptions requested by beneficial owners, not to refusals of access requested by third parties (which are governed by general principles and more recently by Directive (EU) 2024/1640).

Second, what does Article 47 of the Charter require? The right to an effective remedy does not mean that only courts may take the initial decision on exemptions. It does require that:

• decisions of a non‑judicial body be subject to full judicial review by a court that can examine all relevant issues; and
• interim judicial protection be available to prevent irreversible harm, such as premature disclosure of sensitive information pending the outcome of the case.

The Advocate General concludes that Article 31(7a), read in light of Article 47, does not preclude conferring the exemption decision on a non‑judicial body such as a chamber of commerce, provided that:

• a subsequent judicial remedy is available to the beneficial owner; and
• the court can grant effective interim relief to preserve the owner’s rights during the proceedings, including suspension of disclosure.

He also hints that the Italian model, which combines in one decision both the assessment of the beneficial owner’s risks and the evaluation of the applicant’s legitimate interest, may raise practical difficulties in fully protecting rights, but ultimately leaves it to the national court to verify that effective judicial protection is in fact guaranteed.

For practitioners, this means that non‑judicial gatekeepers (register operators, chambers of commerce, supervisory bodies) can remain the operational front line for exemption decisions, but systems must be designed so that:

• beneficial owners can challenge refusals of exemptions in court; and
• courts have the power and the practical means to suspend access pending resolution.

Practical implications for financial crime compliance

Taken together, the Advocate General’s conclusions sketch a coherent approach that reconciles transparency with fundamental rights in a post‑Luxembourg Business Registers landscape:

• The concept “similar legal arrangements” stands and can catch a wide variety of fiduciary structures so long as they functionally mirror trusts in their ability to hide beneficial owners behind nominal owners.
• Member States have broad, but not unlimited, discretion to decide which national constructs fall into that category and to notify them to the Commission.
• Access to beneficial ownership information for trusts and similar arrangements cannot be opened indiscriminately to the general public. It must be filtered through the concept of “legitimate interest”, which Member States must define but which must remain anchored in AML/CFT objectives and applied with a case‑specific balancing of rights.
• Non‑judicial authorities can administer access and exemptions, but only under the shadow of robust judicial review, including interim relief.

From a financial crime perspective, several concrete lessons emerge.

First, firms offering fiduciary and trust‑like services in the EU should assume that structures which separate title and beneficial enjoyment, especially where assets are registered in the name of a fiduciary, can legitimately be brought within beneficial ownership transparency regimes, even if domestic civil law does not label them as trusts.

Second, compliance officers should be aware that access requests by NGOs, journalists and other third parties may increasingly be framed in terms of “legitimate interest” focused on AML/CFT risks. Member States are expected not to shut the door on such actors. Internal processes for handling and documenting cooperation with registries and authorities should take this into account.

Third, beneficial owners and their advisers should note that exemption mechanisms will likely be narrowly construed and that “exceptional circumstances” must be substantiated with concrete risk evidence. At the same time, the right to judicial review and interim relief gives a real avenue to challenge disclosure where serious threats can be shown.

Finally, supervisors and registry operators should review their procedures in light of this emerging framework. The operational design of notification, objection and decision‑making processes around exemptions, as well as the interfaces with courts, will be critical to ensuring both compliance with EU law and resilience against legal challenges.

The Court of Justice is not bound by the Advocate General’s views, but they are often influential. If the Court follows this line, Europe’s beneficial ownership regime for trusts and similar arrangements will remain robust and relatively broad, but tightly framed around legitimate interest and with stronger safeguards for data protection and judicial protection than the short‑lived experiment of full public access.

The Opinion suggests that a wide range of fiduciary and nominee structures can be brought under Article 31 if they conceal beneficial owners behind nominal holders. At the same time, it underlines that transparency mechanisms must be designed with tight legal framing, careful case‑by‑case balancing and robust judicial safeguards.

Dive deeper

• CJEU ¦ Joined Cases C‑684/24 and C‑685/24 ¦ Link
• EUR-Lex ¦ Directive (EU) 2015/849 ¦ Link
• EUR-Lex ¦ Directive (EU) 2018/843 ¦ Link
• Normattiva ¦ DECRETO LEGISLATIVO 21 novembre 2007, n. 231 ¦ Link