If you have a company registered in the Commercial Register or you plan to establish a new company that is registered in the Commercial Register, you should pay attention. In February of this year, Act No. 52/2018 Coll., amending Act no. 297/2008 Coll. on protection against the legalization of income from criminal activity and on protection against the financing of terrorism and on the amendment of certain laws as amended (hereinafter referred to as the "Amendment"), which although focuses on exposing practices that we also call "money laundering" and the financing of terrorism, but the Amendment in question also amended Act No. 530/2003 Coll. on the commercial register and on the amendment of certain laws, in which a new obligation was added for all legal entities that are registered in the commercial register, consisting in the obligation to designate and enter in the commercial register the person - the final user of the benefits. However, this obligation will not apply to those entities that are either a public administration entity or an issuer of securities accepted for trading on a regulated market.
Part of the recorded data, which will also be visible in the extract from the commercial register, will therefore include, in addition to data such as registered office, business name, statutory body, amount of share capital, etc., as well as identification of the end user of the benefits.
The end user of the benefits according to § 6a of Act no. 297/2008 Coll. on protection against the legalization of income from criminal activity and on protection against the financing of terrorism and on the amendment of certain laws, as amended, is a natural person who:
- has a direct or indirect share, or their sum of at least 25 % in voting rights in a legal entity or in its share capital, including bearer shares,
- has the right to appoint, otherwise establish or remove a statutory body, management body, supervisory body or control body in a legal entity, or any of their members,
- controls the legal entity in another way or
- has the right to an economic benefit of at least 25 % from the business of a legal entity or from another of its activities.
If it is not possible to determine the end user according to the above criteria, the end user of the benefits is considered to be a member of top management, i.e. a statutory body, a member of a statutory body, a procurator or a senior employee in the direct management of the statutory body.
The final user of the benefits is therefore the one who actually controls and controls the legal entity in question.
Registration of the final user of the benefits in the commercial register
In view of the adoption of the Amendment, the interdepartmental comment procedure also changes Decree no. 25/2004 Coll., which establishes models of forms for submitting proposals for registration in the commercial register and a list of documents that must be attached to the proposal for registration (hereinafter referred to as "Amendment of the Decree"), through which the forms are to be amended and supplemented , by which commercial companies are entered in the commercial register or changes in these commercial companies are entered in the commercial register.
At the time of writing this article, the proposed Amendment to the Decree changes these forms in such a way that the forms of proposals for the registration of new companies in the commercial register (the so-called initial entry) will be supplemented with additional information, namely the final user of the benefits.
A new separate change form will also be created, which will be used to enter data on the end user of the benefits for companies that are already registered in the commercial register. This form will also be used to record any changes to data on the end user of the data, or deletion of the old end user of benefits and registration of a new user of benefits.
For the registration of the final user of the benefits, or for the registration of changes to the data on the end user of benefits, according to the Amendment, a court fee will not be paid, unlike other registration procedures.
Not only his identification data, but also the data on the basis of which this natural person has the status of the end user of the benefits, i.e. e.g. whether it is a natural person who actually controls or controls a legal entity or a natural person for whose benefit the legal entity carries out its activity and the data that establish its status as the final user of the benefits (see points (i) to (iv) above).
The data on the end user of the benefits will not have to be supported by any documents, which will result in the data to be entered in the commercial register. In other words, when registering the end user of benefits in the commercial register, a verification document will not be drawn up (as in the case of entries in the register of a public sector partner), which would certify on the basis of which the specific end user of benefits was determined.
It is explicitly established that the registration of the end user of benefits in the commercial register does not replace the obligation to register the end user of benefits in the register of public sector partners.
The deadline for submitting a proposal for the registration of the final user of the benefits in the commercial register
If you are going to establish a company after November 1, 2018, you must reflect these changes, and therefore the proposal for registering a new company in the commercial register (the so-called initial entry) must also include data on the final user of the benefits, i.e. the person who will have the "final" ownership benefit from the activity, or existence of the given company.
Existing companies, or companies that will be entered in the commercial register by 31.10.2018 will have to complete this entry of the end user of benefits in the commercial register by 31.12.2019 at the latest.
Sanctions
It should be noted that if it turns out that the data on the end user of the benefits do not correspond to reality, the registry court is authorized to impose a fine of up to EUR 3,310 on the company or the person authorized to act on its behalf.
We will be happy to provide you with more information on this topic in our office.