Updated: June 8, 2010 (Initial publication: May 19, 2010)
Sectorial Analysis
II-11.5: Decree n°2010-219 relating to the French National Register of Trusts was published on March 2nd, 2010
Main information
The national register of trusts has finally become a reality thanks to a decree published on March 2, 2010. It only use will be to inform various government administrations, in order to reinforce the tools available for fighting tax evasion, money laundering, and terrorism financing.
Attached documents
Context and Summary
- Surname, name, address, date and place of birth of natural persons constituting the trust, acting as trustee, and if need be, natural persons designated as beneficiaries of the trust;
- Corporate name, company identification number, address of the corporate headquarters or establishment of all legal persons constituting the trust, acting as trustee, or, if need be, legal persons designated by the trust as beneficiaries;
- Date and registration number of the trust contract and any amendments, and the identification of the tax office where the formalities were completed;
- If necessary, the date the obligatory publication of real-estate transactions was completed, the number of publication and the identification of the office where the formalities were completed.
All of this information will be kept for ten years after the extinction of the trust (article 3).
Brief commentary
This decree implemented a file of purely private data, kept for a very long time after the formation of the trust, since this information will only be deleted ten years after the trust has ended.
We understand the { ratio decidendi }. Truly, trusts can be masks—as are the notions of ‘trust’ and ‘nominee’ in Anglo-American law—which is why they have long been considered as illegal according to French international public policy doctrine, because they can allow people dissimulate their identity in their economic transactions. Therefore, the trust—when it is used as an instrument to disguise—can be an instrument that endangers public policy.
However, we must here make a distinction that Law makes less and less often. Truly, when it is question of money laundering or sponsoring of terrorism, the breach of public policy that can be hid by a trust justifies the creation of a file of personal data. On the other hand, tax evasion is, of course, an example of illicit behaviour, but is not an example of an international criminal organisation, as in the two previously cited examples. Therefore, this violation of privacy is weakly justified.
The State, through legislation, has a tendency towards expanding its law enforcement powers, justified by the first example, to the second example, where it is much less justified.
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