The Ministry of Justice intends to implement a series of measures in order to transpose the IV EU Directive 2015/849 of 20th May 2015 regarding the prevention of the use of the financial system for money laundering. Likewise, it also intends to take steps regarding the V Directive in this area, the definitive text of which is known, although it has not yet been officially published.
We may recall that the IV Directive should have been transposed before 26th June 2017, although this has not happened so far.
The IV Directive establishes two main obligations:
a) On the one hand, the need for data regarding the beneficial ownership of companies to be kept on a central register in each Member State.
b) And on the other hand, the need for operators who offer services for the incorporation of companies or who perform company secretary or management duties to obtain a licence or to register themselves.
As far as the data base is concerned, and taking the Single Notarial Computerised Index which public notaries use regarding the beneficial ownership of companies, the General Council of Notaries has created a new data base, which is more powerful and complete, to determine who are the beneficial owners of companies who participate in the market of goods and services. That said, it is not exhaustive, given that it does not take into account neither the transfer of participations by court procedure or the transfer of the shares of joint-stock companies.
The Money-Laundering Act 10/2010 shall be modified, for the purposes of the Commercial Registry keeping a register of providers of services to companies. Natural persons and legal entities are among such service providers, as well as certain professionals (for example, lawyers). The service providers must apply for registration on a special register, which shall be administered by the Commercial Registry.
Thirdly, as from 2018, and commencing with the annual company accounts for the 2017 financial year, it shall obligatory to file, together with the accounts, a new document regarding the beneficial ownership of the company filing accounts, that is to say, those natural person/s who hold at least 25% of share capital or who exercise direct or indirect control over the management of the company. Where there is indirect control, through a legal entity, the identity of such should be indicated. The information gathered shall be available to any applicant, although it shall be subject to the legal provisions regarding personal data protection.
Finally, regarding the transposition of the V Directive on money laundering, information from the data bases regarding beneficial ownership shall be facilitated to any person who has filed an application through the Commercial Registries. Additionally, the percentage of shares held in order to be considered a “beneficial owner of a company” shall be reduced from 25% to 10%. And as a complement to the above, the interconnection of the European registries shall go ahead, with the objective of allowing the access to such data held by the Member States adhered to the agreement on interconnection; with the purpose of increasing transparency in the market and giving better security and guarantees to companies and professionals who operate or who wish to operate on an intra-community level.
Eduardo Vilá
Vilá Abogados
For more information, please contact:
16th of March 2018
