Key points
EU Directive 2026/799 (Second Insolvency Directive) grants bankruptcy trustees (curatori) the right of direct and "silent" access to the Register of Beneficial Owners of trusts and fiduciary mandates. This access without prior notice, effective from 21 April 2026, aims to improve the tracing of assets belonging to the bankruptcy estate, overcoming asset opacity to protect creditors.
Introduction
New European legislation is transforming the management of insolvency proceedings and efforts to combat asset opacity. EU Directive 2026/799, known as the Second Insolvency Directive, introduces enhanced investigative powers for bankruptcy trustees, redefining the approach to asset-segregation structures and fiduciary mandates. The Directive, published on 1 April 2026 and effective from 21 April 2026, harmonises the actions of insolvency practitioners across the European Union.The Bankruptcy Trustee's "Silent" Access to the Register of Beneficial Owners
Article 18 (Title III, "Tracing Assets Belonging to the Bankruptcy Estate") of EU Directive 2026/799 forms the core of the reform, granting the bankruptcy trustee unprecedented investigative powers. This article establishes the right of direct, timely and asymmetric access to beneficial ownership data.
Principle of "Silent" Access
The principle of "silent" access means that information held in interconnected central registers must be provided to the bankruptcy trustee without generating any alert or prior notice for the entity, trust or beneficial owner concerned. This information asymmetry, inspired by anti-money laundering investigations, aims to improve the bankruptcy trustee's effectiveness in identifying and maximising the value of assets belonging to the bankruptcy estate, for the benefit of creditors (as clarified by recital 19 of the Directive).Accessible Information and Differentiated Treatment
The Directive requires Member States to ensure that the accessible data are clearly and exhaustively defined. The bankruptcy trustee may promptly obtain the following information:* Name, month and year of birth of the beneficial owner.
* Country of residence and nationality.
* For ordinary legal entities: the nature and extent of the beneficial interest held.
* For express trusts and similar legal arrangements: the "nature of their beneficial ownership".
The wording concerning the "nature of beneficial ownership" for trusts enables the insolvency practitioner to reconstruct the entire asset-segregation structure, identifying the settlor, trustee, protector and beneficiaries, and their roles or powers of influence.
The Role of Fiduciary Mandates and the Proceedings Pending Before the CJEU
The reference to "similar legal arrangements" raises an important issue for the Italian legal system concerning the applicability of this category to fiduciary mandates of domestic fiduciary companies. On this specific point, a ruling by the Court of Justice of the European Union (CJEU) is expected in 2026 in Joined Cases C-684/24 and C-685/24, arising from requests for preliminary rulings submitted by the Council of State. Advocate General Jean-Richard de la Tour, in his Opinion delivered on 11 December 2025, has already expressed support for including fiduciary mandates among arrangements similar to trusts, effectively anticipating the substantive outcome of Article 18 in the insolvency context.
Proportionality Review and Legal Safeguards
A crucial aspect of the new Directive concerns its constitutional validity, particularly in light of the judgment in Luxembourg Business Registers (Joined Cases C-37/20 and C-601/20 of 22 November 2022), which invalidated general public access to beneficial ownership registers for breach of the principle of proportionality.Unlike indiscriminate access, the bankruptcy trustee's position introduced by Directive 2026/799 is considered balanced and capable of withstanding challenges to its legality for the following reasons:
* It is limited to a qualified position distinct from a general legitimate interest.
* It is linked to formally ongoing insolvency proceedings.
* It is strictly confined to an explicitly defined purpose: tracing only assets relevant to the insolvency.
Synergies in Asset Tracing and Transposition Deadlines
The effectiveness of Article 18 is amplified when considered alongside other key provisions of the Directive:* Article 19: Requires that the bankruptcy trustee be granted access to registers of real estate, cadastral records, movable property, gifts, pledges and seizures, both domestic and foreign.
* Articles 6–9: Provide harmonised rules governing avoidance actions across the Union.
Together, these tools make it possible to reveal the economic dominus behind transactions (beneficial ownership data), map assets (asset registers) and recover them coherently (avoidance actions). In this way, trusts established close to the onset of financial distress lose the scope for opacity that underpinned their defensive asset planning.
Transposition Deadlines
Art. 55 sets the general deadline for Member States to transpose the Directive at 22 January 2029. The exception is the system interconnecting bank account registers (Sirch), for which the deadline is deferred to 10 July 2029. The Italian legislature will need to coordinate this new framework with the recent d.lgs. 210/2025 (effective from 31 December 2025), which already provides for tiered access to the Register of Beneficial Owners.Practical Implications for Wealth Advisers
For professional advisers, EU Directive 2026/799 entails two fundamental practical approaches:* Ex Ante Approach (Planning): When establishing a trust and transferring assets into it, it is essential to document in detail the genuine nature of the structure, the complete traceability of flows and the existence of a specific underlying purpose worthy of legal protection that goes beyond merely placing assets beyond creditors' reach.
* Ex Post Approach (Litigation): In conducting a defence, the bankruptcy trustee's access may be challenged on proportionality grounds. Any consultation or use of data exceeding the strict purpose of "identifying and tracing assets relevant to the insolvency proceedings" may be formally challenged by the trust's lawyer.
