New obligation to declare beneficial owner(s)

2 min read

The Ordinance of 1 December 2016 (which implemented the European Anti-Money Laundering Directive of 20 May 2015) and the so-called "Sapin II Law" of 9 December 2016 introduced new obligations for companies. Companies must now identify their beneficial owner(s) and communicate this information to the Tribunal de commerce Registry.

A beneficial owner means: the natural person or persons who either directly or indirectly hold(s) more than 25% of the capital or voting rights of the company, or, exercise, by any other means, a controlling power over the management, administration or direction bodies of the company or over the general meeting of the partners.

A decree by the Conseil d'État (to be published shortly) will clarify this definition and the methods for determining a beneficial owner.

To comply with these new obligations, any existing company must file a document identifying the name of the beneficial owner(s) before 1 April 2018 with the Tribunal de commerce Registry. These new obligations are immediately applicable for newly registered companies.

The Registry must be notified of any change in beneficial ownership within 30 days.

These formalities must be performed by a legal representative of the company.

The form to be filed with the Registry must include information that identifies the company and the beneficial owner(s), the terms of control exercised over the company by the beneficial owner(s), and the date on which the natural person(s) became the beneficial owner(s).

Only certain persons (e.g. bank staff, notaries or lawyers) are authorized to access the information held by the Registry and only for the purpose of fulfilling their "legal compliance" obligations, in particular with regard to anti-money laundering.

These new obligations apply to all companies and unincorporated legal entities in the form of companies, including "economic interest groups" and foreign companies with branches registered in France. These obligations do not apply to companies whose shares are able to be traded in a regulated market. However this exemption does not currently include unlisted subsidiaries of such companies.

In the case of non-compliance with these obligations, the president of the Tribunal, on his/her own motion or at the request of the public prosecutor or any other person with a justifiable interest, may order the filing of the required information with the Registry.

The failure to file or the filing of a document containing incorrect or incomplete information may incur a sentence of 6 months' imprisonment and a 7,500 euro fine.


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