The transparency register is intended to provide information on the beneficial owner(s) of legal entities subject to the reporting obligation. Legal entities under private law and registered partnerships, i.e. in particular the common legal forms such as GmbH, KG, GmbH & Co KG, AG and foundations, are subject to reporting requirements.
The beneficial owner of legal entities under private law and registered partnerships is generally any natural person who directly or indirectly
- holds more than 25 percent of the capital shares,
- controls more than 25 percent of the voting rights or
- exercises control over the company in question in a comparable manner.
If no such person exists at a company, the legal representatives are deemed to be the so-called fictitious beneficial owners. Special features must also be taken into account in the case of multi-level shareholdings, as well as in the case of voting agreements, voting pools, etc.
If the information on the beneficial owner is already available from other public registers, such as the commercial register, or if the company is listed on the stock exchange, the notification of the entry of the beneficial owner in the transparency register could be waived. This is because Section 20 para. 2 AMLA (old version) contained corresponding notification fictions.
With effect from August 1, 2021, however, the notification fictions were abolished so that the Transparency Register was transformed from a catch-all register into a full register. If an entry in the transparency register has not yet been made due to the notification fictions, there is therefore a need for action. Companies that have not yet been registered must identify their beneficial owners and make the corresponding entries.
As a result of the abolition of the notification fiction, the absence of information in the transparency register is the rule. § Section 59 para. 8 GwG therefore provides for transitional periods for the notifications to the transparency register that now have to be made:
- until March 31, 2022, if the company is a stock corporation, SE or partnership limited by shares;
- until June 30, 2022 if the company is a limited liability company, cooperative, European cooperative or partnership
- until December 31, 2022 for all other cases.
Corresponding provisions on fines are suspended for a further year in each case. The obligation to submit a discrepancy report due to a lack of registration will be suspended until April 1, 2023 due to the numerous new obligations in certain constellations.
However, it should be noted that the transitional periods only apply to those legal entities subject to the reporting obligation that were not obliged to report under the previous legal situation - i.e. until July 31, 2021 - due to the exemption and notification fiction. Newly established legal entities that are subject to the notification obligation or that did not report for other reasons must report immediately.
The abolition of the notification fiction also entails the (ongoing) obligation to update regularly in the event of changes (e.g. change of managing director in the case of fictitious beneficial owners). This obligation is flanked by corresponding provisions on fines.
If you have any further questions, we will be happy to provide you with advice and assistance.