Beneficial Owners Register

from Wikipedia, the free encyclopedia

The beneficial owner register (WiERe, English Register for Ultimate Beneficial Owners , also: UBO Register) is a fee-based, public register (register) in Austria , in which the most important legally relevant facts and legal relationships of companies and other legal entities named in the beneficial owner register law, are to be entered. It was introduced automatically in 2018.

Legal basis

The legal basis of the WiERe is the federal law on the establishment of a register of beneficial owners of companies, other legal entities and trusts , short title: beneficial owner register law (WiEReG), which came into force on January 15, 2018.

The WiEReG, in turn, was stipulated for all EU member states on the basis of several provisions of the European Union (see e.g. the fourth version of the Anti-Money Laundering Directive). As a result of the 5th Money Laundering Directive and the necessary implementation in Austria, the beneficial owner register law has been significantly adapted and expanded.

Legal entity

The WiERe is to be applied to the legal entities expressly named in the Economic Owners Register Act (§ 1 WiEReG). These are companies and other legal entities domiciled in Austria as well as trusts and trust-like agreements in accordance with Section 1 (2) no. 17 and 18 WiEReG:

  1. Open companies (OG);
  2. Limited partnerships (KG);
  3. Stock corporations (AG);
  4. Limited Liability Companies (GmbH);
  5. Trade cooperatives and business cooperatives;
  6. Mutual insurance companies ;
  7. small insurance companies;
  8. Savings banks ;
  9. European economic interest groups
  10. European companies (SE)
  11. European Cooperatives (SCE)
  12. Private foundations in accordance with Section 1 of the Private Foundation Act;
  13. other legal entities which are intended to be entered in the commercial register in accordance with Section 2 no. 13 FBG;
  14. Associations in accordance with Section 1 of the Association Act;
  15. Foundations and funds in accordance with Section 1 of the Federal Foundation and Fund Act 2015;
  16. Foundations and funds established on the basis of a state law, provided that the application of this federal law is provided for by state law;
  17. Trusts and trust-like agreements (e.g. under certain circumstances an establishment under private law , trust , Fiducia , Fideikommiß ), provided that the trustee or a person similar to him in Austria starts a business relationship on behalf of the trust or the trust-like connection or acquires real estate;

purpose

According to Section 7 (1) WiEReG, the primary purpose of the beneficial owner register is to prevent the financial system from being used for money laundering and terrorist financing purposes. The beneficial owners are therefore to be entered in the WiERe, who are ultimately owned or controlled by a legal entity according to § 2 WiEReG. This is generally the case if a direct or indirect owner holds shares or voting rights of more than 25% in a company. If no beneficial owner can be determined, the members of the top management level of the legal entity (e.g. managing director, board of directors) are considered beneficial owners.

Registration authority and data processing

The Federal Minister of Finance is the registry authority in accordance with Section 14, Paragraph 1 of the WiEReG. The registry authority is the data protection client for the registry (Section 7, Paragraph 5 and Section 8 of the WiEReG). The Austrian Federal Statistical Office and the Federal Computing Center Limited Liability Company (Bundesrechenzentrum GmbH) are only statutory service providers for the register, unless expressly stipulated otherwise (Section 7 (5) WiEReG).

At the latest after 10 years from the end of the beneficial ownership of a company or other legal person domiciled in Austria as well as trusts and trust-like agreements, the data on a beneficial owner must be deleted (Section 7 (3) WiEReG).

Registration, due diligence and reporting obligations

Pursuant to Section 14 (6) WiEReG, the registry authority can request information from legal entities and their beneficial owners at any time about the beneficial owners of legal entities and the submission of corresponding documents and other written documents.

The recording and checking of the data regarding the identity of the beneficial owner is primarily a matter for the legal entities themselves (§ 3 WiEReG). In order to fulfill the due diligence requirements, the data must be checked by the legal entity at least once a year to determine whether the beneficial owners reported to the register are still up-to-date. Corresponding to this obligation of the legal entity, the legal and beneficial owners have to provide all documents and information required to fulfill the due diligence obligations (§ 4 WEReG).

According to § 11 WiEReG, when applying their due diligence towards their customers, obligated parties may not rely solely on the information contained in the WiERe about the beneficial owners of a legal entity. They have to use a risk-based approach to fulfill their due diligence requirements . This means that an extract from the register can only be used to determine the beneficial owner, but not to verify the beneficial owner.

The notification or change of data on beneficial owners must be made within four weeks by the legal entity directly to the Federal Statistics Austria as the service provider for the registry authority via the company service portal in electronic form (Section 5 WiEReG). If an obligated party discovers incorrect data in the WiERe, he must report this (Section 11 (3) WiEReG). For certain legal entities, there is an exemption from the reporting obligation (e.g. if all shareholders of a limited liability company are natural persons - Section 6 (2) WiEReG). The first reports to the register must be made by June 1, 2018, unless there is an exemption from the reporting obligation. Exempt from the reporting requirement are z. B. beneficial owners who are already registered in a master register (e.g. commercial register , register of associations, etc.) and whose personally liable partners are natural persons (OG and KG), GmbHs, with only natural persons as partners and associations in accordance with the Association Act and trade and business cooperatives. In these cases, however, only if no other natural person exercises control over the management of the legal entity.

Generally not notifiable are:

In accordance with the right view of the Austrian Ministry of Finance is in the of a bankruptcy procedure also concerned subsidiary entities for the administrator no reporting requirement.

By June 2018, 356,000 reportable companies are expected. Anyone who violates reporting obligations can be punished with up to 300,000 euros in the event of intent according to Sections 15 and 16 of the WiEReG. The Federal Ministry of Finance (BMF) has issued a decree on the Economic Owners Register Act regarding the scope of application, the definition of the beneficial owner (for example, to assess the existence of direct and indirect beneficial ownership and when control can be assumed) Due diligence obligations of the legal entities with regard to their beneficial owners, the reporting of the data by the legal entities, the exemption from the reporting obligation and the inspection of the register.

Insight into the WiERe

Access to the WiERe has not been limited since 2020. Transparency International previously demanded that basically every interested party should have access to the register. This was complied with through the change in the implementation of the 5th Money Laundering Directive. The inspection is also subject to a fee in accordance with § 17 WiEReG. The WiERe can be viewed from May 2, 2018 and simple (Section 9 (4) WiEReG) and extended extracts (Section 9 (5) WiEReG) can be accessed. In addition to the data contained in the simple extracts, extended extracts also contain:

  • the indication of the persons authorized to represent the legal entity, insofar as these are stored in the register
  • the indication of the calculated beneficial owner and ultimate legal entity
  • an indication of whether it is a complete extended extract; this is the case when all data are completely available, the reported data match the data generated with the help of automation and there is no upright note
  • a representation of all known participation levels, generated automatically on the basis of the entries in the register, provided these are relevant for determining the beneficial owner and data about the respective legal entity is available in the register.

To protect the rights of those affected, all data from queries and excerpts from the WiERe are recorded. Unauthorized viewing will result in a fine of up to 10,000 euros.

Inspection by obliged entities

According to § 5 Abs. 4 WiEReG every legal entity is entitled to inspect the data recorded about him in the register via the company service portal. Furthermore, certain people, such as B. credit institutions, insurance companies, lawyers, notaries, auditors or tax consultants, accountants, bookkeepers and payroll administrators, traders including auctioneers, insofar as they accept payments in cash of at least 10,000 euros, real estate agents, management consultants, insurance brokers and others are entitled within the scope of the application inspect the register for their due diligence obligations to prevent money laundering and terrorist financing vis-à-vis their customers (Section 9 (1) WEReG). In addition, the lawyers, notaries, auditors, tax consultants, accountants, accountants and payroll administrators of these named persons may inspect them for the purpose of advising their clients with regard to the determination, review and reporting of the beneficial owners of their clients (Section 9 (2) WiEReG). For new customers, credit and financial institutions have been obliged to obtain an extract from the WiERe since January 10, 2020.

Inspection by authorities

The right of inspection by authorities according to § 12 WiEReG covers a very large number of authorities in Austria, e.g. E.g .: the registry authority, the money laundering reporting office, the FMA, competent state authorities, chambers within the framework of the supervision of certain members, district administrative authorities, law enforcement authorities, the public prosecutor's offices and courts for criminal purposes, financial criminal authorities and the federal tax court for financial criminal purposes, federal tax authorities and the federal tax court for tax purposes, if this is expedient and appropriate in the interest of collecting the tax, the Austrian National Bank , the Federal Minister of the Interior, the security authorities (police) for the purposes of the security police.

Web links

Individual evidence

  1. ↑ Accessible if there is a legitimate interest , website of the Ministry of Finance, last accessed on March 17, 2018.
  2. ↑ Federal Law Gazette I 2017/136.
  3. ↑ Directive (EU) 2015/849 of the European Parliament and of the Council of May 20, 2015
  4. ↑ RL (EU) 2018/843, ABl. L 156 of June 19, 2018, p. 43.
  5. ↑ EU Finance Adjustment Act 2019.
  6. ↑ This is an incomplete reference, because Section 2, Paragraph 13 FBG only states: other legal entities whose registration is required by law.
  7. ↑ Until 2020, trusts and trust-like connections were only considered subject to the WiEReG if they were administered from within Germany. There was administration in Germany in particular if the trustee was domiciled or domiciled in Germany.
  8. ↑ Accessible if there is a legitimate interest , website of the Ministry of Finance, last accessed on March 17, 2018.
  9. ↑ Journal for Insolvency Law and Credit Protection , ZIK 2018/160 from August 31, 2018.
  10. ^ The Register of Beneficial Owners , website of the Ministry of Finance, last accessed on March 17, 2018.
  11. ↑ Unusually, the Federal Ministry of Finance has promised generous grace periods to avert coercive sentences, see ÖStZ 2018/323.
  12. ↑ Decree of the BMF April 26, 2018, BMF-460000/0007-III / 6/2018.
  13. ↑ Costs according to: WiEReG usage feesV, Federal Law Gazette II No. 77/2018.
  14. ↑ Accessible if there is a legitimate interest , website of the Ministry of Finance, last accessed on March 17, 2018.
  15. ^ The Register of Beneficial Owners , website of the Ministry of Finance, last accessed on March 17, 2018.