On 15 January 2019, the law dated 13 January 2019 on setting up a central register of ultimate beneficial owners (registre de bénéficiaires effectifs, RBE) of legal entities has been published. This law transposes certain provisions of the 4th AML directive (Directive (EU) 2015/849 of the European Parliament and Council dated 20 May 2015) as well as the 5th AML directive (Directive (EU) 2018/843 of the European Parliament and Council dated 30 May 2018) into Luxembourg law (the “Law”).
Here is what you need to know about this new law and how Vistra can help you navigate the change:
A. What is the registre de bénéficiaires effectifs (RBE)?
The Law establishes a central register keeping certain information on the ultimate beneficial owners (UBO) of Luxembourg companies.
The Law does not autonomously define who is considered ultimate beneficial owner, but refers to the law of 12 November 2004 in relation to the fight against money laundering.
Thus, ultimate beneficial owner is:
- Any natural person who ultimately owns or controls a legal entity through direct or indirect ownership of a sufficient percentage of the shares or voting rights or ownership interest in that entity. A direct or indirect ownership of 25% plus one share will be the general guideline to indicate ultimate beneficial ownership. If such 25% shareholding is reached through the holding of various companies being ultimately held by the same UBO, this person will be considered as UBO too.
If there is no natural person owning 25% of the company, information on the controlling officer (dirigeant principal) of the company must be disclosed.
Companies concerned by the legislation are most entities registered in Luxembourg, in particular SA, SCA, Sàrl, SCS, SCSp, SE, SNC, GIE, SAS, SC, FCP and Luxembourg investment funds.
Listed entities will only need to register the market in which their shares are traded.
B. Who is maintaining the RBE?
The RBE is kept by the Luxembourg Business Register (previously the Trade and Companies Register, RCSL) and the information as well as supporting documentation will need to be submitted electronically.
A grand ducal regulation (still to be passed) will explain the details of the process of submission and registration.
C. Information to be registered
The following information is required to be registered in the RBE:
- Name and surname
- Date and place of birth
- Country of residence
- Private or professional address
- National identification number
- Nature and extent of the effective interests held
D. Accessibility of registered information
A grand ducal regulation will further determine the details of who will have access and in which scope to the information held in the RBE. The Law determines that the Luxembourg national authorities will have unlimited access. Furthermore, the public will have access with the exception of the address and the identification number. A particular interest in obtaining the information is not required.
E. Information to be kept at the registered office of the company
Each company that is required to register its UBOs in the RBE must keep an internal file on the UBOs at its registered office. The authorities can request access to such a file and access is to be granted within three days of their request.
The Law will enter into effect as of 1 March 2019. From the effective date, all concerned entities will have six months to fulfil their filing obligations.
Any change in a UBO must be published within one month from the date the change was known to the entity.
The Law foresees significant fines for not complying with the obligations, such as lack of or late filing, non-compliance with the obligation to maintain the UBO file at the registered office as well as any deliberately wrong, incomplete or non-updated filing that can trigger fines between EUR 1,250 and EUR 1,250,000. Non-compliance can be reported to the Luxembourg prosecutor.
G. Vistra’s services in relation to the RBE
Vistra can provide the full range of services to comply with the obligations under the Law:
- Review of who is to be registered as the UBO
- Preparing the file to be registered with the RBE, ensuring completeness and accuracy of the relevant information and supporting documentation
- Registration with the RBE and relevant follow up communication
- Continuous monitoring that the information filed with the RBE remains accurate
- Update registrations, if UBOs change their information
- Communication with the RBE or any other authorities in relation to questions on UBOs
- Preparing and maintaining the internal file to be kept at the registered office, including electronic file management
- Safekeeping of all UBO information in compliance with Luxembourg law and deadlines, also for liquidated or migrated companies (5-year period)
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