Transparency register "reloaded" - significant expansion of registration obligations due to the latest reform of the German Money Laundering Act (GwG)

The new transparency register is intended to provide information on the beneficial owners of companies and other organizations. The focus is on combating money laundering and terrorist financing.

From Prof. Dr. Maximilian A. WerkmüllerProfessor of Finance and Family Office Management at the Allensbach University

Largely unnoticed by the public, the legislator has significantly expanded the registration obligations for so-called beneficial owners in the transparency register as part of its latest amendment to the AMLA. This goes back to the Act on the European interconnection of transparency registers and the implementation of Directive (EU) 2019/1153 of the European Parliament and of the Council of June 20, 2019. This was done rather indirectly by deleting the so-called notification fiction of Section 20 para. 2 GwG.

Transparency register: registration obligations under the new GwG

The notification fiction of Section 20 para. 2 GwG previously prevented partnerships or corporations whose shareholder structure was evident from "other public registers" (nota bene: only domestic public registers were meant) from having to be entered. Insofar as the "nature and scope of the economic interest" was recognizable from these registers, in particular the commercial register, an additional entry of the company in the transparency register was not required. This has now come to an end. Since August 1, 2021 (!), all legal entities under private law and all registered partnerships must be entered. This therefore applies to all limited liability companies (GmbH and Unternehmergesellschaft), every public limited company, including those listed on the stock exchange, every registered cooperative, but also every general partnership, every limited partnership, every partnership company and every registered or licensed (commercial) association. BGB companies are still not affected. In each case, the beneficial owner(s) must be entered with the type and scope of their economic interest.

Further new regulations

Under current law, foreign companies or their ultimate beneficial owners (UBOs) already had to be entered in the German transparency register if the company directly held real estate in Germany. The amendment to the GwG now extends this registration obligation to foreign companies that hold shares in domestic real estate companies. Previously, in addition to personal details such as name, date of birth and place of residence, the AMLA only required the "nationality" of the beneficial owner to be stated. For this reason, only one nationality was usually stated for persons with several nationalities. In future, all nationalities must therefore be expressly entered. If there is no beneficial owner or none can be identified, the legal representatives of the respective company must be entered in the transparency register as fictitious beneficial owners. It remains to be seen whether it is sufficient to enter only one of several legal representatives. To be on the safe side, every legal representative should be entered.

Transitional arrangements

Companies that previously benefited from the fictitious notification from the aforementioned public registers can invoke certain transitional periods granted by the new law. The transitional periods differ depending on the legal form of the company. They end for stock corporations and partnerships limited by shares on March 31, 2022, for GmbHs and UGs, cooperatives and partnerships on June 30, 2022 and for all others on December 31, 2022. The transition period is immediately followed by a grace period of one year. During this period, violations of the new registration obligations cannot be punished as an administrative offense. The fines under the new law therefore correspond to those under the old law and are still horrendous. Fines of up to one million euros can be imposed. Banks and credit institutions can be fined up to ten percent of their annual turnover (Section 56 (3) GwG).

Recommendations for action on the transparency register

Consultants are strongly advised to search their customer and client bases for companies that have benefited from the fictitious notification under the previous law and were not subject to a registration obligation. It is also advisable to take a look at the general administrative instructions of the Federal Office of Administration, which is responsible for maintaining the transparency register. Here, the authority occasionally publishes new legal opinions on existing regulations, which are often surprising. For example, while it was previously not necessary to record the beneficiaries of foundations as beneficial owners if they had no actionable claims to benefits (standard case), the Federal Office of Administration changed its legal opinion in this regard in summer 2020 and posted a revised version of the interpretation notes online. Anyone who did not actively follow this ran the risk of - completely unintentionally - approaching the provisions on fines under the AMLA.

In our Master's program in Finance we explain in the elective Family Office Management (FOM) The task and function of combating money laundering and the transparency register. The topic has acute practical relevance and requires ongoing revision.