The case originated from appeals brought by several Italian fiduciary companies challenging the provisions transposing Directive (EU) 2015/849 (the "AMLD4"), as amended by Directive (EU) 2018/843 (the "AMLD5" and, together with the AMLD4, the "AMLD"). The applicants argued that subjecting "fiduciary mandates" (mandati fiduciari in the Italian language version) to the beneficial ownership transparency obligations—in a manner analogous to trusts—was unlawful.
The CJEU dismissed the applicants' arguments, albeit with certain key clarifications and a partial censure of the Italian transposition legislation, namely Legislative Decree 231/2007 (the "AML Decree").
This alert focuses on two specific aspects:
- The scope of the notion of "legal arrangements similar to trusts"
- The meaning of the concept of "relevant and differentiated legal interest"
The assimilation of fiduciary mandates to trusts
As is well known, European anti-money laundering legislation requires trusts and "similar legal arrangements" to disclose the identity of their beneficial owner to a public register. In the ruling under review, the CJEU confirmed that Italian fiduciary mandates fall within the category of "legal arrangements similar to trusts," clarifying that the concept should not be construed restrictively. In particular, from the ruling it emerges that:
- the notifications submitted by member states pursuant to Article 31(10) of the AMLD do not have normative force but are merely declaratory in nature as to the categories of entities falling within the concept of trusts or similar legal arrangements
- the meaning and scope of the concepts of "trust" and "similar legal arrangement" must be determined by giving due regard to the context in which they are customarily used and their commonly understood meaning
- the perimeter of the concept of "similar legal arrangement" must be assessed in light of the principle of "substance over form”; all arrangements exhibiting specific characteristics must be classified as such, regardless of their formal legal classification.
Applying these principles to the Italian fiduciary mandate, the CJEU found that the key factor is the arrangement whereby a fiduciary company holds assets in its own name on behalf of another person and administers them on that person's behalf. This mechanism creates an interposition effect that conceals the identity of the settlor (fiduciante in the Italian language version), in a manner analogous to a trust, thereby giving rise to transparency concerns relevant for anti-money laundering purposes.
The CJEU further held that it is irrelevant whether the fiduciary holding occurs without a transfer of ownership, as such transfer is not a necessary condition for the purposes of classification as "legal arrangements similar to trusts" under Article 31(1) of the AMLD.
The final assessment is now in the hands of the Italian referring court, which will apply the principles set out by the CJEU to the specific case.
Persons entitled to access beneficial ownership data
The ruling comes in the context of a regulatory framework recently amended with respect to the categories of persons entitled to access the Register. In December 2025, Article 74 of Directive 2024/1640 (the "AMLD6") was transposed, restricting Register access to private parties holding a "relevant and differentiated legal interest." For further detail on this issue, please refer to our previous publication: Italy tightens access to beneficial ownership register.
On the issue of legitimate interest, the CJEU addressed two questions—one of EU law and the other of Italian law:
- as to the first, the Court clarified that Article 31(4), first subparagraph, point (c) of the AMLD does not infringe Articles 7 and 8 of the Charter of Fundamental Rights of the EU, since the interference with such rights is: (i) necessary to safeguard general interests; (ii) limited to what is strictly necessary; and (iii) "considerably less serious" than in the case of unrestricted access to the Register; and
- as to the second, the Court found that the concept of "relevant and differentiated legal interest" introduced by the Italian legislator under Article 21(2)(f) of the AML Decree is not inconsistent with Article 31(4) of the AMLD. According to the CJEU, the Italian legislator has struck an appropriate balance between the prevention of money laundering and terrorist financing and the rights protected by Articles 7 and 8 of the Charter of Fundamental Rights of the EU.
The judgment's censure regarding the absence of interim relief in the Italian system
While acknowledging the substantial conformity of Italian legislation with EU law, the CJEU censured the Italian legal system concerning exemptions from Register access in cases of exceptional risk to the beneficial owner under Article 31(7-bis) of the AMLD.
Although the CJEU considers the Italian model—which entrusts the power to grant exemptions to the Chamber of Commerce (Camera di Commercio in the Italian language version)—to be compatible with EU law, it criticizes the absence of any form of interim protection for the company and/or beneficial owner where the Chamber of Commerce grants a request for access, thereby denying the exemption for cases of exceptional risk.
The issue does not lie in the absence of any remedy (the Chamber of Commerce can reject a request for access). Rather, it concerns the absence of precautionary measures enabling the beneficial owner to obtain a suspension of the disclosure to the requesting party where the Chamber of Commerce denies the exemption. Without such a mechanism, any intervention by the administrative court risks being rendered ineffective; once data has been disclosed, the resulting harm to the beneficial owner’s right to privacy is definitive and cannot be remedied by any ex post judicial measure.
Expected legislative developments
The impact of the ruling on the operability of the Register—which remains suspended—is still uncertain.
It remains to be seen whether the Italian legislator will act swiftly to adopt secondary legislation addressing the CJEU's concerns regarding judicial protection and immediately reactivate the Register, or whether full operability will have to await the complete transposition of the AMLD6.
This dilemma is not without consequences: should the Register be reactivated immediately, various categories of obliged entities would be required to report their beneficial ownership data within a short timeframe.
As to the timeline for alignment with the AMLD6, the draft transposition decree has received preliminary approval from the Council of Ministers, with a transposition deadline set for July 10, 2026.
Based on the version made publicly available, the draft decree amends the AML Decree by introducing an autonomous regulatory framework to reorganize the rules governing the maintenance of and access to the Register.
In particular, it provides for a graduated and proportionate access system, structured according to the legal status of the requesting party:
- immediate and unrestricted access for competent authorities
- timely access for obliged entities, limited to what is necessary for due diligence purposes
- conditional access for all other private parties, subject to holding a qualified and differentiated legitimate interest, without prejudice to exemptions and exceptions.
It remains to be seen what steps the legislator will take to finally make the Register operational.
* Giuseppe Asero (Legal Intern) contributed to the drafting of this insight.
