L.N. 374 of 2017 – Companies Act (Register of Beneficial Owners) Regulations, 2017
These Regulations implement the provisions on beneficial ownership information of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 as applicable to commercial partnerships formed and registered under the Companies Act.
APPLICABILITY & COMING IN FORCE
These Regulations came into force on the 1st of January 2018 however the provisions related to the access of the beneficial ownership register will come into force on the 1st of April 2018.
Such Regulations apply to all companies and partnerships registered under the Maltese Companies Act, however they do not apply to the following companies:
1.Companies listed on a regulated market that is subject to disclosure requirement consistent with the law of the Community (EU) or subject to equivalent international standards which ensure adequate transparency of ownership information;
2.All registered shareholders which are natural persons who are disclosed in the public records at the register of commercial partnerships maintained by the Registrar of Companies.
These Regulations shall apply to partnerships en nom collectif and partnerships en nom commandite as well as to private limited liability companies formed and registered under the Merchant Shipping (Shipping Organisations – Private Companies) Regulations.
Procedure when registering companies as of 1st January 2018
When a company is to be incorporated under the Companies Act, together with the Memorandum and Articles of Association of the Company one needs to deliver the Declaration of Beneficial Owners in terms of Regulation 3 as found in the First Schedule of the Regulations.
This declaration is to be signed by two of the proposed directors of the company unless the company has proposed one director, in which case the beneficial owner form shall be signed by that one (1) director.
The following information shall be provided to the Registrar of Companies for each beneficial owner:
- Date of birth;
- Country of residence;
- An official identification document number indicating the type of document and countries of issue;
- Nature and extent of the beneficial interest held.
COMPANY & DIRECTORS RESPONSIBILITY
Every company is required to at all times hold adequate, accurate and up to date information in respect of its beneficial owners to include the following information:
- The name, the date of birth, the nationality, the country of residence and an official identification document number indicating the type of document and the country of issue of each beneficial owner;
- The nature and extent of the beneficial interest held by each beneficial owner and any changes thereto;
- The effective date on which a natural person became, or ceased to be, a beneficial owner of the company or has increased or reduced his beneficial interest in the Company
The Company shall obtain the afore-mentioned information from the shareholders of the company and, or from any natural person whom it has reasonable cause to believe to be a beneficial owner.
Beneficial owners are bound to provide the said information to the company without delay.
When beneficial owners acquire, dispose of, increase or reduce their beneficial interest in the company, they shall be bound to immediately provide the said information to the company.
Information on beneficial ownership shall be kept by the Company in a beneficial owners register which needs to be kept at the registered office of the Company or at such other place specified in the Memorandum and Articles of Association.
The Company and every officer, shareholder and beneficial owner of the company who is in default shall be jointly and severally liable to a penalty, and for every day during which such default continues, to a further penalty.
On the other hand, if an officer has exercised all due diligence to comply with the Regulations and the default was not due to an act or omission or negligence on his part then he shall not be liable.
CHANGE IN BENEFICIAL OWNERSHIP
When there is a change in beneficial ownership, the Company shall within 14 days after the date on which the change is recorded with the Company, deliver to ROC a notice through FORM BO1 – COMPANIES ACT (REGISTER OF BENEFICIAL OWNERS) REGULATIONS, 2017 – NOTICE ON BENEFICIAL OWNERS IN TERMS OF REGULATION 6.
Where a notice of transfer or transmission of shares is delivered to the Registrar for the registration or where there is an increase or reduction of the issued share capital or a restructuring of a company’s share capital or changes in the voting rights, the Company shall also deliver to the Registrar FORM BO1- COMPANIES ACT (REGISTER OF BENEFICIAL OWNERS) REGULATIONS, 2017 – NOTICE ON BENEFICIAL OWNERS IN TERMS OF REGULATION 6 to indicate whether or not there has been a change in the beneficial ownership of the Company.
A notice of transfer, transmission or allotment of shares or any other document relating to changes in issued share capital or voting rights will not be registered unless the said notice is delivered.
At least one director of the company or the company secretary should sign the afore-mentioned documents.
COMPANIES THAT EXISTED PRIOR TO THE REGULATIONS
Every company formed and registered before the coming into force of these regulations shall comply with the provision of information on beneficial owners within 6 months from the date of coming into force of these regulations i.e. 1st June 2018.
Every company shall on the anniversary of its registration falling due immediately after the expiry of 6 months from the coming into force of these regulations OR where these is any change in the beneficial ownership of the company occurring after the expiry of 6 months from the coming into force of these regulations, whichever is earlier, deliver to the Registrar FORM BO2 – COMPANIES ACT (REGISTER OF BENEFICIAL OWNERS) REGULATIONS, 2017 – DECLARATION OF BENEFICIAL OWNERS IN TERMS OF REGULATION 8.
This should contain all the information on each of the beneficial owners of the company, as at the date of such anniversary or change of the beneficial ownership as the case may be.
This has to be signed by at least one director of the Company or the company secretary and must be delivered to the Registrar within 42 days of the anniversary date to which it is made OR within 14 days after on which the change is recorded with the company.
Access to the beneficial ownership register at the ROC
The register of beneficial owners and the information on the beneficial owners of a company shall, in accordance with data protection requirements, be accessible to:
- 1.National competent authorities that have the function of investigating or prosecuting money laundering, associated criminal offence and terrorist financing, or of tracing, seizing, freezing and confiscating criminal assets;
- 2.The FIAU;
- 3.National tax authorities;
- 4.Any other national competent authorities within the meaning assigned to it by the Prevention of Money Laundering Regulations 2017;
- 5.Those considered as subject persons in terms of the PMLFTR providing services in or from Malta, for the purpose of carrying out customer due diligence in accordance with carrying our due diligence in accordance with the said regulations in a timely manner;
- 6.Any person or organization that upon written request can satisfactorily demonstrate and justify a legitimate interest shall, in accordance with data protection requirements, be granted access to the name, the month and year of birth, the nationality, the country of residence and the extent of the beneficial interest of the beneficial owners of the Company.
Access to the information on beneficial owners of a company held by the Registrar in the register of beneficial owners shall be subject to online registration and shall be subject to the payment of a fee of €5 for every access to the information on the beneficial owners of each company.
Classification of legitimate interest
A legitimate interest to have access to the information on the beneficial owners of a particular company shall be satisfactorily demonstrated if the person or organization requesting such access shows that the interest specifically and solely relates and will contribute to the prevention, detection and combating of money laundering or the associated predicate offences or the financing of terrorism and shall be justified on the basis of previous activities and proven track record of actions in that field by means of relevant documentary evidence.
Any officer, shareholder or beneficial owner of a company who knowingly or recklessly makes a statement, declaration or otherwise provides to the Registrar information on the beneficial ownership of a company, that is misleading, false or deceptive in a material particular, shall be guilty of an offence and shall be liable on conviction to a fine (multa) of not more than €5,000 or to imprisonment for a term not exceeding 6 months.
Reference to fees in accordance with the different Regulations are found in the Second Schedule to these Regulations.