The transparency register has created the conditions for recording information on the beneficial owner behind a company. The transparency obligations affect "associations" within the meaning of Section 20 (1) sentence 1 GwG, i.e. all legal entities under private law and "legal arrangements" within the meaning of Section 21 GwG, i.e. certain trustees and trustees of foundations without legal capacity with a self-interested foundation purpose and legal arrangements that correspond to such foundations in terms of their structure and function. The transparency obligations also affect associations domiciled abroad if they hold or undertake to acquire ownership of real estate located in Germany, unless they have already submitted the relevant information to a transparency register in another EU member state. In accordance with Sections 20 and 21 of the German Money Laundering Act (GwG), "associations" and "legal entities" (hereinafter referred to as "parties obliged to notify") are obliged to notify the details of the beneficial owner (Section 19 GwG) electronically without delay for entry in the transparency register (see under "Online Procedure").
Beneficial owner is
- the natural person who ultimately owns or controls a legal entity, other company or legal arrangement as defined in Section 3 (3) AMLA, or
- the natural person at whose instigation a transaction is ultimately carried out or a business relationship is ultimately established (Section 19 (2) AMLA in conjunction with Section 3 (1) and (2) AMLA).
In the case of legal entities (with the exception of foundations with legal capacity and other companies that are not listed on an organized market pursuant to Section 2 (11) of the German Securities Trading Act (Wertpapierhandelsgesetz) and are not subject to any transparency requirements under Community law with regard to voting rights or equivalent international standards), the beneficial owner is any natural person who directly or indirectly
- holds more than 25% of the capital shares (cf. Section 3 (2) Sentence 1 No. 1 GwG),
- controls more than 25% of the voting rights (cf. Section 3 (2) Sentence 1 No. 2 AMLA) or
- exercises control ina comparable manner (cf. Section 3 (2) sentence 1 no. 3 AMLA).
The beneficial owner is also the person who can exercise indirect control over the association. Control exists in particular if the natural person can directly or indirectly exercise a controlling influence (Section 290 (2) to (4) of the German Commercial Code - HGB) over the association pursuant to Section 20 (1) of the MLA (cf. Section 3 (2) sentence 3 of the MLA). Indirect control exists, in particular, if corresponding shares are held by one or more associations which, in turn, are controlled by a natural person (cf. Section 3 (2) sentence 2 AMLA).
If no natural person can be identified even after comprehensive checks have been carried out and no facts pursuant to Section 43 (1) AMLA have been established, the beneficial owner shall be deemed to be the legal representative, the managing partner or the partner of the contracting party (Section 3 (2) sentence 5 AMLA).
In the case of foundations with legal capacity and administrators of trusts or trustees or in the case of legal forms comparable to these, the beneficial owners shall include
- any natural person acting as settlor, administrator of trusts (trustee) or protector, if any,
- any natural person who is a member of the Board of Directors of the Foundation,
- any natural person who has been designated as a beneficiary,
- the group of natural persons for whose benefit the assets are to be managed or distributed, provided that the natural person who is to become a beneficiary of the managed assets has not yet been designated,
- any natural person who otherwise exercises, directly or indirectly, a controlling influence over the management or distribution of the assets, and
- any natural person who can directly or indirectly exercise a controlling influence on an association that is
a member of the foundation's board of directors or who has been designated as a beneficiary of the foundation (cf. in this regard Section 19 (2) sentence 2 in conjunction with Section 3 (1) and (3) GwG).
The following must be notified
- all legal representatives of legal entities under private law (including public limited companies (AG) (unless listed on an organized market pursuant to Section 2 (11) of the German Securities Trading Act (WpHG) or subject to transparency requirements under Community law), civil law partnerships (GbR), limited liability companies (GmbH), entrepreneurial companies (haftungsbeschränkt),
- registered associations (e. V.),
- registered cooperatives (e. G.),
- foundations with legal capacity,
- European Company (SE),
- partnership limited by shares (KGaA),
- registered partnerships (including oHG, KG, partnerships) as well as
- "legal structures" within the meaning of Section 21 AMLA, i.e. certain trusts and trustees of non-legal foundations with a self-interested foundation purpose and legal structures that correspond to such foundations in terms of their structure and function.
In the case of a civil-law partnership (GbR), the special feature is that there is currently no possibility for it to be entered in the register by naming its company. However, if the GbR holds shares in a GmbH, the shareholders of the GbR must also be entered in the list of shareholders of the GmbH via the amendments to Section 40 (1) GmbHG. The notification requirement does not generally apply to sole proprietors and registered traders (e. K.).
- With the entry into force of the amended Money Laundering Act on December 28, 2022, legal entities under private law and registered partnerships with their registered office abroad are also subject to the notification requirement if they hold ownership of real estate located in Germany or undertake to acquire such ownership (Section 20 (1) sentence 2 GwG). A notification obligation is only not required if the associations with registered offices abroad have already transmitted the information to another register of a member state of the European Union (Section 20 (1) sentence 3 AMLA).
Furthermore, the notification requirement has been extended - also with regard to acquisitions in the context of so-called share deals - to include existing cases. § Section 59 (13) AMLA grants a transitional period for existing cases until June 30, 2023.
Companies whose beneficial owners were already identifiable from other public registers could previously rely on not having to actively report to the transparency register. With the deletion of the notification fiction in Section 20 (2) AMLA, this exception to the notification obligation no longer exists as of August 01, 2021. As of August 1, 2021, all legal entities under private law and registered partnerships must therefore actively report their beneficial owners to the transparency register for registration.