26 June 2019
Many Irish corporate entities are, since 15 November 2016, required to maintain registers containing their respective beneficial ownership information under the EU (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016 (the ‘2016 Regulations’).
This requirement is now restated and supplemented in the recent EU (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 (the ‘Regulations’) which comprise two principal parts:
(a) Part 2 revokes and restates the 2016 Regulations, with some amendments, with effect from 22 March 2019; and
(b) Part 3 requires a relevant entity to file its beneficial ownership information with a Central Register: this requirement came into effect on 22 June 2019 and relevant entities must file this information within a further 5 month period (i.e. by 22 November 2019).
Beneficial ownership register
The Regulations revoke and restate the 2016 Regulations with some amendments that:
The Central Register
Part 3 of the Regulations imposes an obligation on a relevant entity to file its beneficial ownership information in the Central Register to be maintained by the Registrar of Beneficial Ownership of Companies and Industrial Provident Societies (the ‘Registrar’). The Regulations envisage that the Registrar be appointed by the Minister for Enterprise, Business and Innovation. It is anticipated that the Registrar of Companies of the Companies Registration Office will be so appointed.
Initial Central Register filing obligation
Under Part 3, a relevant entity that:
The beneficial ownership information to be provided to the Central Register includes:
The Regulations provide that the relevant entity will provide such other information as the Registrar may determine. Further, additional information may be required depending upon whether the beneficial ownership information is delivered to the Registrar by the relevant entity, acting through its officer or employee, or by a person acting on behalf of the relevant entity (referred to in the Regulations as ‘the presenter’). With regard to the PPS number of a beneficial owner which is delivered to the Registrar, the Regulations provide that the Registrar shall not disclose that number. The Regulations further provide that the Registrar can only store a version (a ‘hashed version’) of the number from which it is not possible to determine the actual PPS number.
The Regulations impose an obligation on the relevant entity to keep the information in its beneficial ownership register aligned with the information that the relevant entity has filed with the Registrar in the Central Register. The relevant entity must deliver any changes in the relevant entity’s beneficial ownership information to the Registrar so as to allow the Central Register to be amended with the corresponding changes. The Regulations refer to this as the ‘follow up obligation’ and prescribe the process and requirements for compliance with it.
Access to the Central Register
The Central Register can be inspected by certain members of the Garda Síochána, the Revenue Commissioners, FIU Ireland, the Criminal Assets Bureau and members or staff of a competent authority engaged in the prevention, detection or investigation of possible money laundering or terrorist financing. The ranking and authorisation requirements of those who can inspect the Central Register are prescribed in detail in the Regulations.
A designated person will have a right of access to some information in the Central Register when the relevant entity enters into an occasional transaction (a transaction in relation to which the designated person is required to apply customer due diligence measures) or forms a business relationship with a designated person. In such a case, the designated person can access each beneficial owner’s name, month and year of birth, country of residence and nationality and a statement of the nature and extent of the interest held, or the nature and extent of control exercised of each such beneficial owner.
A member of the public may also inspect similar information as the designated person (above) may inspect. The right of access of both designated persons and the public is restricted in certain cases. For example, where the beneficial owner is a minor, then the person seeking access will need to provide the Registrar with further information as to why that person considers it is in the public interest that the information be disclosed to him or her. In addition, the Registrar may require the person to pay a fee in respect of the access provided.
Failure to comply with the Regulations
A relevant entity that fails to comply with its obligations, including failing to deliver the prescribed beneficial ownership information to the Registrar or failing to provide updated information for the purposes of the Central Register, commits an offence and is liable on summary conviction to a class A fine (not greater than €5,000), or on conviction on indictment, to a fine not exceeding €500,000.
Interconnection of Central Registers
The Regulations provide that the Registrar shall arrange for the connection of the Central Register with central registers in other member states, as provided for by the EU’s Fifth Money Laundering Directive 2018/843.