New transparency register and requirements regarding shareholders' list
In order to implement the 4th Anti Money Laundering Directive the German Parliament adopted a bill which entered into force on 26 June 2017 amending the German Money Laundering Act (Geldwäschegesetz) and the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung, "New GmbHG").
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Transparency Register
It is the purpose of the newly introduced electronic transparency register of beneficial owners (Transparenzregister der wirtschaftlich Berechtigten, "Transparency Register") to create transparency regarding the beneficial owners of corporations, partnerships and similar structures. Thus, the Transparency Register shall display the natural person who is in control of a company and who has the ultimate commercial interest.
The affected companies must inform the Transparency Register about the natural persons who own or control the company, and thereby also state the type and extent of such persons' commercial interest. Any agreements that enable a natural person to control the company (e.g. voting agreements) need to be disclosed as well. Generally speaking, this also applies if the natural person is only at the end of a chain of shareholders, e.g. in larger group structures. The required information must be notified by the relevant company. Depending on the circumstances, the direct shareholder or the beneficial owner itself must provide the required information to the relevant company. However, the obligation to notify is considered to be met if the information is already electronically available from documents or entries in certain public registers in Germany (Meldefiktion).
The information regarding the beneficial owner must be provided to the Transparency Register (or otherwise be available through public electronic registers) by 1 October 2017. From 27 December 2017 the Transparency Register can be consulted, however only by a person with a justified interest to do so, or by regulatory public authorities or certain public authorities involved in investigations. Going forward, any changes to the relevant information in the Transparency Register must be filed. Non-compliance with the applicable requirements might result in a fine.
Hence, German companies should now prepare the required notifications. Where the company's shareholder is a foreign corporation, this might imply efforts to investigate the ultimate private beneficial owner.
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New shareholders' list
For German limited liability companies, the so-called shareholders' list (Liste der Gesellschafter) is the only public instrument showing a company's shareholders. Due to the New GmbHG, any new shareholders' list will have to display additional information with regard to the company's shareholders: If a shareholder is a registered company, such company's name and seat, relevant register and registration number must be indicated. If it is a non-registered company, then the list must identify the shareholders' name, date of birth and private address. Furthermore, for each shareholder, the list must show the percentage in the total shareholding, both for each single share and for all shares held.
An obligation to submit to the commercial register a shareholders' list, which is compliant with the extended requirements under the New GmbHG, applies only for lists filed after 26 June 2017, be it for the first time or as update to an earlier list, e.g. due to a change in shareholding.
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