Companies Act – Register of Beneficial Owners

 

On the 1st January 2018, new regulations came into force, applicable to companies except where:

 

  1. They are listed on a regulated market and disclosure is already required under the appropriate regulations; or
  2. Companies where shareholders are all natural persons disclosed to the companies registrar.

 

The First Schedule sets out a form which is to be delivered together with the M&As whenever a new company is being set up. Declarations must be submitted for each beneficial owner and includes name, date of birth and nationality, identification details and country of issue of such document.  Failure to comply means that the Registrar will not register the company.

 

Delivered documents are not to be registered [sic ?] and the Registrar must keep a register for information on the beneficial owners.

 

Companies must retain accurate, adequate and up to date information on all beneficial owners as listed in the regulations. Information is to be obtained from the shareholders or from any natural person which the company believes to be a beneficial owner; these are bound to provide the information without delay, even upon any change in the beneficial ownership or interest held.  The information should be held in a beneficial owners register to be held at the company’s registered office.  New shareholders shall not be entered unless they have supplied such information.

 

Default will give rise to every beneficial owner, shareholder, officer and the company being held jointly and severally liable, except where the officer has used all due diligence in order to comply with the rules and was not at fault for the default.

 

Any changes in beneficial ownership must be notified to the MFSA within fourteen days on the prescribed Form including all the information listed.  The same applies in the case of a transfer or transmission of shares, where this has entailed a change in beneficial ownership, interest held.  Notices of changes must be signed by at least one director or the company secretary.

 

The MFSA is authorised to exchange the information with tax and AML authorities as well as to subject persons carrying out CDD in terms of the PMLR.  Subject persons requesting such information may demonstrate their legitimate interest in obtaining such information, including on the basis of previous activities and proven track record.  (Note – this might cause problems for new start-ups).  In exceptional cases where the beneficial owner risks exposure to harm owing to  disclosure, such information should not be disclosed.  Subject persons cannot rely exclusively on the register for CDD purposes.  Authorities across the EU will have the power to exchange information with each other.
The rules subject access to information to online registration and a fee of EUR 5.00 for every access to the information on the beneficial owners of each company.

 

Companies existing before the 1st January are given six months to provide information on the beneficial owner.  The company, officers and beneficial owners are jointly and severally liable for any default in this regard except where the officer has used all due diligence in order to comply with the rules and was not at fault for the default. 

 

This information is to be provided at every anniversary of each company, after 6 months have passed from the coming into force of the regulations.  This information is to be submitted by submitting the form in the First Schedule.  It is to be signed by at least one director or the secretary and to be submitted either within 42 days from the anniversary of the company or within 14 days from any change.  The rules also apply to commercial partnerships/

 

False or misleading statements can lead to fines and / or imprisonment.  The rules make provision for electronic submission.  The Second Schedule lists down the applicable administrative penalties.

By Geraldine Spiteri

This post was written by .

Published .

Posted in: BusinessCorporate Servicesdue diligenceFinancial CrimeGeneralLegal DevelopmentsNews

Leave a Reply