Transparency register

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The transparency register anchored in the Money Laundering Act (GwG) §§ 18 ff is a legally prescribed register in which the beneficial owners of legal entities under private law and registered partnerships have to be entered since October 1, 2017 . Its purpose is to prevent money laundering and terrorist financing . The information from the beneficial owners listed in Section 19 (1) of the GwG must be obtained from the associations, kept, kept up to date and immediately communicated to the registry office for entry.

In the context of Section 21 , trusts, fiduciary relationships and foundations with no legal capacity are also covered by the reporting obligation.

Fulfillment of the reporting requirement

The transparency register is designed as a catch-all register. The obligation to notify is deemed to have been met if the information listed in Section 19 (1) of the GwG has already resulted from the documents and entries listed in Section 22 (1), insofar as these can be accessed electronically from:

In the case of companies that are listed on an organized market in accordance with Section 2 (11) of the German Securities Trading Act or that are subject to transparency requirements corresponding to Community law with regard to voting rights or equivalent international standards, the notification obligation is always deemed to have been met. Subsidiaries of these associations can only benefit from the regulation if the parent company holds more than 75% of the shares / voting rights, as it is then excluded that, in addition to the parent company, a beneficial owner within the meaning of Section 3 (1) and 2 GwG exists.

According to the decision of the Federal Office of Administration of January 7, 2019, the fiction of notification pursuant to Section 20 (2) of the GwG is not fulfilled by the entry in the commercial register for a limited partnership, so that there is a supplementary notification obligation. This is justified by the fact that only the limited partners' liability amounts are entered in the commercial register. However, it is not shown in what amount a contribution was actually made. In addition, the contribution of a general partner is not apparent from the commercial register. Accordingly, the percentage participation of the individual partners in the partnership does not result from the entry in the commercial register.

Legal basis and purpose of the register

With the law to implement the Fourth EU Money Laundering Directive, to implement the EU Money Transfer Regulation and to reorganize the Central Office for Financial Transaction Investigations , the Money Laundering Act was revised and the transparency register was introduced in Germany. This means that Germany will implement EU Directive 2015/849 of May 20, 2015 . By the EU Directive 2018/843 of 30 May 2018 , the scope of the Transparency Register will be extended and the register is open to the public.

The purpose of the register is to go beyond (nested) legal structures to identify the natural persons who are at the end of these structures. This is intended to help prevent the abuse of associations and legal structures for the purpose of money laundering and terrorist financing .

Further details on the management and use of the transparency register can be found in supplementary statutory instruments. An overview can be found on the website of the Federal Office of Administration under the keyword "Transparency Register".

The introduction of the transparency register is fraught with numerous legal uncertainties and questions and has led to a lively debate in the legal literature. The Federal Office of Administration, as the legal and technical supervisory authority (Section 25 (6) of the GwG) of the agency that maintains the transparency register ( Bundesanzeiger Verlag GmbH ), has published a catalog of frequently asked questions and answers about the transparency register and the associated obligations to clarify these questions. As the competent administrative authority in accordance with Section 36 (1) No. 1 OWiG, the Federal Administrative Office has published a catalog of fines to be applied for administrative offenses in accordance with Section 56 (1) No. 52 - 56 GwG on its website.

How the register works

Entries

The transparency register contains information about the notifiable association and its "beneficial owners". Beneficial owners ( § 3 GwG ) are natural persons who - directly or indirectly - hold more than 25% of the capital shares or control more than 25% of the voting rights . In the case of indirect control over an intermediary company, the natural person must hold more than 50% of the voting or capital shares in the parent company so that they can control it and thus have control over the subsidiary. If no beneficial owner can be determined in an association, the legal representative, managing partner or partner of the contractual partner is deemed to be the beneficial owner.

The transparency register collects the following data on those entitled ( Section 19 GwG ):

  1. First and Last Name,
  2. Date of birth,
  3. Place of residence and
  4. Type and scope of the economic interest (for more details see Section 19 (3) of the GwG).

Obligated

Those obliged in connection with the transparency register can be divided into two target groups:

  • Notifiable are associations whose beneficial owners are to be entered in the transparency register.
  • The shareholders of the associations are regularly required to provide information . You are obliged to inform the notifying parties so that the latter can fulfill their notification obligations.

According to research by Stern and Correctiv, the register still lacks a lot of data on company owners that should actually be reported.

Authorized persons

Since January 1, 2020, the transparency register has been publicly available to everyone after registration.

Upon request, the beneficial owner can restrict access to the register ( Section 23 (2 ) of the GwG ) if there are interests worthy of protection in individual cases. However, only a fraction of the applications are approved.

Registrar body

The Federal Gazette Publisher 's register office keeping with this task and the powers of the Federal Ministry of Finance in accordance with § 25 para. 1 AMLA § 1 Tranparenzregisterbeleihungsverordnung, mortgaged Service. The transparency register is kept there electronically as a sovereign task of the federal government. Upon request, the register keeping office creates printouts of data that are stored in the transparency register ( Section 18 (4 ) of the GwG ).

The award to the Bundesanzeiger Verlag without prior tendering by the Ministry of Finance met with criticism. According to the public procurement lawyer Meinrad Dreher, "bypassing the procurement law" does not appear to be "impossible".

fees

"The only official platform for reporting beneficial owners is www.transparenzregister.de. Entry and registration on the official platform is free." The basis is the Transparency Register Fee Ordinance. The TrGebV also contains charges for individually attributable services such as inspection or the creation of printouts.

Web links

See also

Individual evidence

  1. ↑ StBK Hessen: Obligation to report to the transparency register for limited partnerships . S. 4 of the newsletter from 05/06/06. 2019 ( Online [accessed June 8, 2019]).
  2. ↑ Law for the implementation of the Fourth EU Money Laundering Directive, for the implementation of the EU Money Transfer Regulation and for the reorganization of the Central Office for Financial Transaction Investigations - text, changes and reasons, ( BGBl. 2017 I p. 1822 - PDF, JavaScript required)
  3. ^ A b Christian Bochmann: Transparency register in future public . In: Frankfurter Allgemeine Zeitung . May 29, 2019, p. 16 .
  4. ^ A b Christian Bochmann: The new transparency register as a compliance task . In: FuS - magazine for family businesses and strategy . 2017, ISSN  2191-9828 , p. 106 .
  5. ↑ draft law of the federal government. In: Bundestag printed matter 18/11555. P. 89 , accessed on August 18, 2017 .
  6. ↑ Ulrich Seibert , Christian Bochmann, Johannes Cziupka: " Arming " the transparency register: No need to worry ! In: GmbH-Rundschau . 2017, ISSN  0016-3570 , p. 1128 ff . ( Online ).
  7. ↑ Ulrich Noack : "Arming" the transparency register: a reason for concern? Retrieved October 24, 2017 .
  8. ↑ Federal Office of Administration: Legal information on submission - questions and answers from the Federal Office of Administration. (PDF) Retrieved October 24, 2017 .
  9. ↑ Christian Bochmann: Questions of doubt about the new transparency register . In: DB - The company . 2017, ISSN  0005-9935 , p. 1310 ( online ).
  10. ↑ draft law of the federal government. In: Bundestag printed matter 18/11555. Pp. 89 and 133 , accessed on August 18, 2017 .
  11. ↑ Jonathan Sachsen, Frederik Richter: Transparency register with gaps. In: Correctiv. Retrieved February 2, 2019 .
  12. ↑ Ordinance on the transfer of the management of the transparency register (Transparency Register Lending Ordinance - TBelV)
  13. ↑ Hans-Martin Tillack: Why the new transparency register does not deserve its name. Stern, accessed February 2, 2019 .
  14. ↑ Transparency register. Accessed January 21, 2020 .