Companies Act (Register of Beneficial Owners) Regulations, 2017

Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 19,924, 20 ta’ Diċembru, 2017

L.N. 374 of 2017

COMPANIES ACT

(CAP. 386)

Companies Act (Register of Beneficial Owners) Regulations, 2017

IN exercise of the powers conferred by article 425(6) of the

Companies Act, the Minister for Finance has made the following

regulations:-

(1)

The title of these regulations is the Companies Act Citation and

scope.

(Register of Beneficial Owners) Regulations, 2017.

(2) The purpose of these regulations is to implement the

relevant 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 Act, and they shall be interpreted and applied

accordingly.

(3) These regulations shall come into force on the 1st January,

2018 other than the provisions of regulation 7 relating to access to the

register of beneficial owners which shall come into force on 1st April,

2018.

FORMS

(Applicable to companies and to partnerships en nom collectif

and partnerships en commandite or limited partnerships)

Companies Act (Register of Beneficial Owners) Regulations, 2017

Declaration on Beneficial Owners in terms of regulation 3

To the Registrar of Companies

I/We the undersigned being the director/s of ……………………….., a company to be

constituted/continued in Malta* under the Companies Act, hereby declare that the

beneficial owners of the company are as follows

Particulars of Beneficial

Extent of Beneficial

Nature of Beneficial

Owner (a)

Ownership (b)

Ownership (c)

Name

Date of Birth

Nationality

Country of Residence

Official Identification

number

Document type

Country of Issue

……………………….....................……

……………………….....................……

Director

Director

(Name and Surname)

(Name and Surname)

Dated this ............................... day of ................................. of the year ............................

(a) Replicate table as necessary

(b) To be stated as a percentage of total ownership

(c) Describe the beneficial ownership indicating whether it is direct or indirect ownership of 25% plus one or more

of the shares or more than 25% of the voting rights or other ownership interests, including through bearer shares or

through control with other means such as for example exercise of a dominant influence, power to appoint or remove

the majority of the board of directors and agreements with other members of the company

* Delete as necessary

B B 2753

FORM BO1

Companies Act (Register of Beneficial Owners) Regulations, 2017

Notice on Beneficial Owners in terms of regulation 6

To the Registrar of Companies

The company ..........…….…………………………………………………………………

having registration number ……....………… hereby gives notice that (choose Section A

or Section B as applicable)

Section A

The company has submitted a notice of transfer, transmission or allotment of shares, or

other document relating to changes in the share capital or voting rights and confirms

that

The aforesaid change has resulted in a change in the beneficial ownership,

as indicated in Section C below.

The aforesaid change has not had any effect on the beneficial ownership.

Section B

A change in the beneficial ownership of the company has occurred without a

change in the registered shareholders, as indicated in Section C below.

Section C

The beneficial owners of the company are as follows

Particulars of Beneficial

Extent of Beneficial

Nature of Beneficial

Owner (a)

Ownership (b)

Ownership (c)

Name

Date of Birth

Nationality

Country of Residence

Official Identification

number

Document type

Country of Issue

Date of change in beneficial ownership (if applicable): …………......……………………

……………………………

Director/Secretary

(Name and Surname)

Dated this ............................ day of ................................ of the year ............................

(a) Replicate table as necessary

(b) To be stated as a percentage of total ownership

(c) Describe the beneficial ownership indicating whether it is direct or indirect ownership of 25% plus one or more

of the shares or more than 25% of the voting rights or other ownership interests, including through bearer shares or

through control with other means such as for example exercise of a dominant influence, power to appoint or remove

the majority of the board of directors and agreements with other members of the company

B B 2754

FORM BO2

Companies Act (Register of Beneficial Owners) Regulations, 2017

Declaration on Beneficial Owners in terms of Regulation 8

To the Registrar of Companies

I/We

the

undersigned

being

the

director/s

of

the

company

………………………..……………, having registration number ……................….........

hereby declare that the beneficial owners of the company, as at the date of the attached

Annual Return / of this form (delete as applicable), are as follows

Particulars of Beneficial

Extent of Beneficial

Nature of Beneficial

Owner (a)

Ownership (a)

Ownership (b)

Name

Date of Birth

Nationality

Country of Residence

Official Identification

number

Document type

Date of Issue

……………………………

Director/Secretary

(Name and Surname)

Dated this ............................ day of .................................... of the year ............................

(a) Replicate table as necessary

(b) To be stated as a percentage of total ownership

(c) Describe the beneficial ownership indicating whether it is direct or indirect ownership of 25% plus one or more

of the shares or more than 25% of the voting rights or other ownership interests, including through bearer shares or

through control with other means such as for example exercise of a dominant influence, power to appoint or remove

the majority of the board of directors and agreements with other members of the company

B B 2755

(1)

In these regulations, unless the context otherwise

Interpretation

requires –

and

applicability.

"Act" means the Companies Act;

"beneficial owner" shall have the meaning assigned to it under

the Prevention of Money Laundering and Funding of Terrorism S.L. 373.01.

Regulations, 2017 and "beneficial ownership" shall be construed

accordingly.

(2) Words and expressions used in these regulations which are

also used in the Act shall have the same meaning assigned to them in

the Act.

(3) These regulations do not apply to a company

(a)

listed on a regulated market that is subject to

disclosure requirements consistent with the law of the

Community or subject to equivalent international standards

which ensure adequate transparency of ownership information;

(b)

all the registered shareholders of which are natural

persons who are disclosed in the public records at the register of

commercial partnerships maintained by the Registrar of

Companies.

PENALTIES

FORM BO3

Daily

Regulation

Default

Penalty

Penalty

5(5)

Failure to keep record of beneficial owners

€1000

€10

Failure to provide information to the Registrar about a change in the

6(5)

€1000

€10

beneficial ownership of a company

Failure to comply with regulation 5 within six months from the

8(2)

€1000

€10

coming into force of the regulations

Failure to provide the Registrar with a declaration containing

8(5)

€1000

€10

information on the beneficial owners of the company

€0.63

(1)

With effect from the date of the coming into force

of these regulations, where a company is to be constituted under the

Act, together with the memorandum and articles, if any, delivered to

the Registrar for registration in accordance with article 76 of the Act,

there shall be delivered to the Registrar a declaration, in the form set

out in the First Schedule to these regulations, signed by two of the

proposed directors of the company unless the company has one

proposed director, containing information in accordance with sub-

regulation (2) on all the beneficial owners of the company.

(2) The information on the beneficial owners of the company

to be provided to the Registrar in accordance with sub-regulation (1)

shall, in respect of each beneficial owner, consist of the name, the

date of birth, the nationality, the country of residence, an official

identification document number indicating the type of document and

the country of issue, and the nature and extent of the beneficial

interest held.

(3) The Registrar shall not register the memorandum and

articles, if any, delivered to him in accordance with article 76 of the

Act unless he is satisfied that the requirements of this regulation have

been complied with.

(4) The provisions of this regulation shall, mutatis mutandis,

apply to companies continued in Malta in terms of the Continuation

of Companies Regulations.

Documents required to be delivered to the Registrar under

any of the provisions of these regulations shall not be registered and

the information on the beneficial owners of every company provided

to the Registrar in accordance with these regulations shall be entered

and held by the Registrar in a register of beneficial owners kept by the

Registrar for this purpose.

(1)

Every company shall obtain and at all times hold

adequate, accurate and up to date information in respect of its

beneficial owners, which shall at least include the following

particulars

(a)

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;

(b)

the nature and extent of the beneficial interest held

by each beneficial owner and any changes thereto;

(c)

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.

(2) The company shall obtain the information required under

sub-regulation (1) from the shareholders of the company and, or from

any natural person whom it has reasonable cause to believe to be a

beneficial owner, who shall be bound to provide the said information

to the company without delay, and every beneficial owner who

acquires, disposes of, increases or reduces his beneficial interest in

the company shall be bound to immediately provide the said

information to the company.

(3) The information referred to in sub-regulation (1) shall be

entered and held by the company in a beneficial owners register to be

kept at the registered office of the company or at such other place as

may be specified in the Memorandum or Articles of Association of

the company.

(4) The company shall not enter the name of a new

shareholder or any changes to existing shareholdings in the register of

members unless it has obtained, as may be applicable, information on

the underlying beneficial ownership as required in accordance with

sub-regulation (1) of this regulation.

(5) If default is made in complying with the provisions of this

regulation, 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 the default

continues, to a further penalty

Provided that an officer of the company shall not be liable

if he had exercised all due diligence to comply with the provisions of

this regulation and the default was not due to any act or omission or

negligence on his part.

(1)

Where there is a change in the beneficial ownership Notice of

of a company, the company shall, within fourteen days after the date change

beneficial

on which the change is recorded with the company, deliver to the owners.

Registrar a notice, in the form set out in the First Schedule to these

regulations, of the change, providing the information required under

regulation 3 on any new beneficial owner, updated information

including on the nature and extent of the beneficial interest held on

each of the other beneficial owners and the effective date of changes

made, and the Registrar shall enter the said changes in the register of

beneficial owners.

(2) Where a notice of transfer or transmission of shares is

delivered to the Registrar for registration in accordance with article

120(3) of the Act 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, together with the said

notice or other documents as applicable, also deliver to the Registrar

a notice in the form set out in the First Schedule to these regulations,

indicating whether or not there has been a change in the beneficial

ownership of the company and providing the information as required

under sub-regulation (1).

(3) The Registrar shall not register a notice of transfer,

transmission or allotment of shares or any other document relating to

changes in issued share capital or voting rights unless the

requirements of sub-regulation (2) have been complied with.

(4) The notices of changes in beneficial ownership referred to

in sub-regulations (1) and (2), duly completed, shall be signed by at

least one director of the company or the company secretary.

(5) If default is made in complying with the provisions of this

regulation, the company and every officer of the company who is in

default shall be jointly and severally liable to a penalty, and, for every

day during which the default continues, to a further penalty.

(1)

The information on the beneficial owners of a

company held by the Registrar in the register of beneficial owners

shall, in accordance with data protection requirements, be accessible

to

(a) (i)

national competent authorities with designated

responsibilities for combating money laundering and terrorist

financing;

(ii)

national competent authorities that have the

function of investigating or prosecuting money laundering, associated

criminal offences and terrorist financing, or of tracing, seizing,

freezing and confiscating criminal assets;

(iii)

the Financial Intelligence Analysis Unit;

(iv)

national tax authorities; and

(v)

any other national competent authority within the

meaning assigned to it under the Prevention of Money Laundering

and Funding of Terrorism Regulations, not already covered under

sub-paragraphs (i) to (iv),

in a timely manner without any restriction and without alerting

the company concerned; and

(b) subject persons in terms of the Prevention of Money S.L. 373.01

Laundering and Funding of Terrorism Regulations providing services

in or from Malta, for the purpose of carrying out customer due

diligence in accordance with the said regulations, in a timely manner.

(2) Any person or organisation that upon a 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 and nature of the beneficial interest of the

beneficial owners of a company.

(3) A legitimate interest to have access to information on the

beneficial owners of a particular company in accordance with sub-

regulation (2) shall be satisfactorily demonstrated if the person or

organisation requesting such access can satisfactorily demonstrate

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 a proven track

record of actions in that field by means of relevant documentary

evidence.

(4) A legitimate interest shall be conclusively determined by

the Registrar, and for this purpose the Registrar may request

information or seek guidance from or consult with any person or

authority as he may deem necessary.

(5) Access to information on a beneficial owner of a company

under sub-regulations (1)(b) and (2) may not be granted, in full or in

part, where in exceptional circumstances to be justified by means of

documentary evidence and to be determined on a case by case basis,

access to such beneficial ownership information would expose the

beneficial owner to the risk of fraud, kidnapping, blackmail, violence

or intimidation, or where the beneficial owner is a minor or otherwise

incapable.

(6) Subject persons shall not rely exclusively on the register of

beneficial owners to fulfil their customer due diligence obligations in

terms of the Prevention of Money Laundering and Funding of S.L. 373.01

Terrorism Regulations.

(7) The authorities referred to in this regulation and the

Financial Intelligence Analysis Unit may, in pursuance of their

functions in accordance with applicable law, provide information on

beneficial owners accessible to them in terms of this regulation to

competent authorities and to Financial Intelligence Units of other

Members States of the European Union and third countries.

(8) Access to the information on the beneficial owners of a

company held by the registrar in the register of beneficial owners

shall be subject to on-line registration and, other than in respect of

such access by the authorities mentioned in sub-regulation (1) (a),

shall be subject to the payment of a fee of five euro (€5) for every

access to the information on the beneficial owners of each company.

(1)

Every company formed and registered before the

coming into force of these regulations shall comply with the

provisions of regulation 5 within six months from the date of the

coming into force of these regulations.

(2) If default is made in complying with sub-regulation (1), 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 the default continues, to a

further penalty

Provided that an officer of the company shall not be liable

if he had exercised all due diligence to comply with the provisions of

this regulation and the default was not due to any act or omission or

negligence on his part.

(3) Every company as is mentioned in sub-regulation (1) shall,

on the anniversary of its registration falling due immediately after the

expiry of six months from the coming into force of these regulations

or where there is any change in the beneficial ownership of the

company occurring after the expiry of six months from the coming

into force of these regulations, whichever is the earlier, deliver to the

Registrar a declaration in the form set out in the First Schedule to

these regulations, containing the information mentioned in regulation

3 on all the beneficial owners of the company, as at the date of such

anniversary or change as the case may be.

(4) The declaration duly completed shall be signed by at least

one director of the company or the company secretary and shall be

delivered to the Registrar within forty two days of the anniversary

date to which it is made up or within fourteen days after the date on

which the change is recorded with the company as the case may be,

and the Registrar shall enter the information contained therein in the

register of beneficial owners.

(5) If default is made in complying with the provisions of sub-

regulations (3) and (4) of this regulation, the company and every

officer of the company who is in default shall be jointly and severally

liable to a penalty, and, for every day during which the default

continues, to a further penalty.

The Registrar may refuse to register any document of a Power of the

company, which is required to be registered under the Act, if he is not Registrar

register

satisfied that the company has provided accurate and up to date documents.

information on all the beneficial owners of the company as required

by these regulations.

These regulations shall apply to partnerships en nom Applicability to

collectif and partnerships en commandite or limited partnerships, as if partnerships

nom collectif

reference in these regulations to

and partnerships

en commandite

or limited

(i)

"company" were a reference to "partnership en nom partnerships.

collectif and partnership en commandite or limited partnership";

(ii)

"memorandum and articles" were a reference to

"deed of partnership";

(iii)

"article 76 of the Act" were a reference to "article

15 of the Act";

(iv)

"shareholders" were a reference to "partners";

(v)

"director" or "directors", "officer" or "officers",

"director of the company or the company secretary" were a

reference to "partner or partners having the administration or

representation of the partnership".

Any officer, shareholder or beneficial owner of a company Misleading,

who knowingly or recklessly makes a statement, declaration or false

deceptive

otherwise provides to the Registrar information on the beneficial information.

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 five thousand euro

(€5,000) or to imprisonment for a term not exceeding six months or to

both such fine and imprisonment.

(1)

In accordance with the requirements of Directive Interconnection

EU 2015/849 of EU Parliament and Council of 20 th May 2015 the of

beneficial

register of beneficial owners held by the Registrar in accordance with owners.

regulation 4 shall be interconnected with the system of

interconnection of central, commercial and companies registers

composed of the registers of Member States and EEA States via the

European Central Platform and the European e-Justice portal serving

as the European electronic access point, in terms of Directive 2009/

101/EC, as amended by Directive 2012/17/EU.

(2) The information on the beneficial owners of a company

held by the Registrar in the register of beneficial owners shall be

available and accessible through the system of interconnection of

registers mentioned in this regulation.

Any document which is required to be delivered to the

Registrar under any of the provisions of these regulations and any

such delivery and the retention of any such document by the Registrar

may be in such format and by such means, including in electronic

form and by electronic communication within the meaning of the

Electronic Commerce Act, as the Registrar may deem appropriate.

(1)

Where any provision of these regulations provides

for the imposition of a penalty, the amount of such penalty shall be

determined by reference to the Second Schedule of these regulations,

which specifies the maximum penalty that may be imposed by the

Registrar under any of the provisions of these regulations.

(2) In the Second Schedule, the first column indicates the

regulation and sub-regulation which prescribes that a penalty shall be

imposed, the second column gives a general description of the

infringement, which description shall not be relied on in interpreting

any provision of these regulations, the third column prescribes the

maximum penalty and the fourth column prescribes the maximum

daily default penalty. The penalty shall become due on the day on

which the default occurs and the daily default penalty shall be due for

every day during which the default continues and shall accrue from

the day following that on which the default occurs.

(3) Action by the Registrar for the recovery of a penalty under

these regulations shall be prescribed by the lapse of five years from

the day on which the default occurs.

(4) A company shall be jointly and severally liable with its

officers for the payment of any administrative penalties imposed

under these regulations.

(5) The provisions of article 401(3) to (17) of the Act shall

apply to any penalty imposed by the Registrar under these

regulations.

These regulations shall, mutatis mutandis, apply to private Applicability to

limited liability companies formed and registered under the Merchant shipping

companies.

Shipping (Shipping Organisations - Private Companies) Regulations. S.L. 234.42