beneficial ownership registers under the 4th and …...beneficial ownership registers under the 4th...

Beneficial Ownership Registersunder the 4th and 5th AMLD

an update

STEP Europe, Limassol, Cyprus, 26 – 28 June 2019

Jérôme Barré, Anthony Cremona, Aldona Leszczynska-Milkulska,

Paolo Panico, Emily Yolitis

PAOLO PANICO’s LAW CHAMBERS

6 – 12, rue de la Poste

L-1212 Luxembourg



L-1212 Luxembourg

EU UBO registers

Directive 2015/849 (4th AML Directive)

Published in the Official Journal on 5th June 2015 (OJ L141/73)

Due to entry into force under Member States’ implementing legislation in June 2017

Chapter III – Beneficial Ownership Information


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EU UBO registersDirective 2015/849 (4th AML Directive)

Article 30 (1) Member States shall ensure that corporate and other legal entities incorporated within their

territory are required to obtain and hold adequate, accurate and current information on their beneficial ownership, including the details of the beneficial interests held.

[..](5) Member States shall ensure that the information on the beneficial ownership is accessible in all cases:(a) to competent authorities and FIUs, without any restriction;(b) to obliged entities, within the framework of customer due diligence in accordance with Chapter II;(c) to any person or organisation that can demonstrate a legitimate interest. The persons and organisations referred to in point (c) shall access at least the name, the month and year of birth, the nationality and the country of residence of the beneficial owner as well as the nature and extent of the beneficial interest held.For the purposes of this paragraph access to the information on beneficial ownership shall be in accordance with data protection rules and may be subject to online registration and to the payment of a fee. The fees charged for obtaining the information shall not exceed the administrative costs thereof.[..]




EU UBO registersDirective 2015/849 (4th AML Directive)

Article 31 (1) Member States shall require that trustees of any express trust governed under their law obtain and hold adequate, accurate and up-to-date information on beneficial ownership regarding the trust. That information shall include the identity of:(a) the settlor;(b) the trustee(s);(c) the protector (if any);(d) the beneficiaries or class of beneficiaries; and(e) any other natural person exercising effective control over the trust. [..](4) Member States shall require that the information referred to in paragraph 1 is held in a central register when the trust generates tax consequences. The central register shall ensure timely and unrestricted access by competent authorities and FIUs, without alerting the parties to the trust concerned. It may also allow timely access by obliged entities, within the framework of customer due diligence in accordance with Chapter II. Member States shall notify to the Commission the characteristics of those national mechanisms.[..](8) Member States shall ensure that the measures provided for in this Article apply to other types of legal arrangements having a structure or functions similar to trusts.




EU UBO registers

Directive EU 2018/843 amending Directive (EU) 2015/849 («5th AML Directive»)

Published in the Official Journal on 19th June 2018 (OJ L156/43)

Due to entry into force under Member States’ implementing legislation by 20 January 2020 (18 months)




EU UBO registers(5th AML Directive)

Article 30 (1) Member States shall ensure that corporate and other legal entities incorporated within their

territory are required to obtain and hold adequate, accurate and current information on their beneficial ownership, including the details of the beneficial interests held. Member States shall ensure that breaches of this Article are subject to effective, proportionate and dissuasive measures or sanctions. [..]

(5) Member States shall ensure that the information on the beneficial ownership is accessible in all cases:(a) to competent authorities and FIUs, without any restriction;(b) to obliged entities, within the framework of customer due diligence in accordance with Chapter II;(c) any member of the general public. The persons and organisations referred to in point (c) shall be permitted to access at least the name, the month and year of birth, the nationality and the country of residence of the beneficial owner as well as the nature and extent of the beneficial interest held. Member States may, under conditions to be determined in national law, provide for access of additional information enabling the identification of the beneficial owner. That additional information shall include at least the date of birth or contact details in accordance with data protection rules.




EU UBO registers(5th AML Directive)Article 31 (1) Member States shall ensure that this Article applies to trusts and other types of legal

arrangements, such as, inter alia, fiducie, certain types of Treuhand or fideicomiso where such arrangements have a structure or functions similar to trusts. Member states shall identify the characteristics to determine where legal arrangements have a structure or functions similar to trusts with regard to such legal arrangements governed under their law.

Each Member State shall require that trustees of any express trust administered in that Member State obtain and hold adequate, accurate and up-to-date information on beneficial ownership regarding the trust. That information shall include the identity of:(a) the settlor(s);(b) the trustee(s);(c) the protector (if any);(d) the beneficiaries or class of beneficiaries; and(e) any other natural person exercising effective control over the trust. Member States shall ensure that breaches of this Article are subject to effective, proportionate and dissuasive measures or sanctions.




EU UBO registers(5th AML Directive)Article 31 [..](3a) Member States shall require that the beneficial ownership information of express trusts and similar legal arrangements as referred to in paragraph 1 shall be held in a central beneficial ownership register set up by the Member State where the trustee of the trust or person holding an equivalent position in a similar legal arrangement is established or resides. Where the place of establishment or residence of the trustee or the trust or person holding an equivalent position in similar legal arrangement is outside the Union, the information referred to in paragraph 1 shall be held in a central register set up by the Member State where the trustee of the trust or person holding an equivalent position in a similar legal arrangement enters into a business relationship or acquires real estate in the name of the trust or similar legal arrangement. Where the trustees of a trust or persons holding equivalent positions in a similar legal arrangement are established or reside in different Member States, or where the trustee of the trust or person holding an equivalent position in a similar legal arrangement enters into multiple business relationships in the name of the trust or similar legal arrangement in different Member States, a certificate of proof of registration or an excerpt of the beneficial ownership information held in a register by one Member State may be considered as sufficient to consider the registration obligation fulfilled




EU UBO registers(5th AML Directive)

(4) Member States shall ensure that the information on the beneficial ownership of a trust or a similar legal arrangement is accessible in all cases to: (a) competent authorities and FIUs, without any restriction; (b) obliged entities, within the framework of customer due diligence in accordance with Chapter II; (c) any natural or legal person that can demonstrate a legitimate interest; (d) any natural or legal person that files a written request in relation to a trust or similar legal arrangement which holds or owns a controlling interest in any corporate or other legal entity other than those referred to in Article 30(1), through direct or indirect ownership, including through bearer shareholdings, or through control via other means. The information accessible to natural or legal persons referred to in points (c) and (d) of the first subparagraph shall consist of the name, the month and year of birth and the country of residence and nationality of the beneficial owner, as well as nature and extent of beneficial interest held. Member States may, under conditions to be determined in national law, provide for access of additional information enabling the identification of the beneficial owner That additional information shall include at least the date of birth or contact details, in accordance with data protection rules. Member States may allow for wider access to the information held in the register in accordance with their national law.




Luxembourg

Law of 13 January 2019 establishing a Register of Beneficial Owners

- Only Companies (= Art 30 of the Directive)- In force on 1st March- 6 months for information on beneficial owners to be

registered- Register meant to «go live» on 1st September- Art 12: Access to information is open to everybody («ouvert à toute personne») (= 5 AMLD)


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Luxembourg

Grand-ducal regulation of 15 February 2019 relating to the ways to register information, to payadministrative duties as well as to the access to information on the Register of beneficial owners

- ID copies have to be downloaded

- Consultation only by corporate name or registration numberof a registered entity (ie, not by beneficial owner)



Luxembourg

Grand-ducal regulation of 15 February 2019 relating to the ways to register information, to payadministrative duties as well as to the access to information on the Register of beneficial owners

Open Issues:- (a) what if a Luxembourg company is controlled by another

company with registered office in another EU member state?- (b) what if a Luxembourg company is controlled by a trust?

(who must be indicated as beneficial owners?)



Luxembourg

Law of 10 August 2018 relating to information to be obtained and filed by fiduciaries and transposing Art 31 of the Directive 2015/849

- Obligations for fiduciaries to collect and keep up to date information on «beneficial owners» of fiduciary contracts under the Law of 27 July 2003 relating to trusts and fiduciary contracts

- Penalties in case of non compliance

- Register in another Bill



EU Charter of Fundamental RightsArticle 7 – Respect for private and family lifeEveryone has the right to respect for his or her private and family life, home and communications.

Article 8 – Respect of personal data 1. Everyone has the right of protection of personal data concerning him or her.2. Such data must be processed fairly for specified purposes and on the basis of the

consent of the person concerned or some legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.

Article 52 – Scope and interpretation of rights and principles1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must

be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.




[email protected]@panico-chambers.eu



L-1212 Luxembourg


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beneficial ownership registers under the 4th and …...beneficial ownership registers under the 4th...

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