Since 2 August 2017 a new regulation imposes an additional formality when creating a company in France: the communication of the list of beneficial owners. What is an effective beneficiary? What should this document contain? What is the penalty for non-compliance?
This formality is also required for companies created before that date.
The beneficial owner
The beneficial owner is the individual or group of persons who own or control directly or indirectly the reporting company. It can not be, in any case, a legal person. Control is indirect when the natural person holds shares in the reporting company through one of a legal person. We therefore understand that the beneficial owner will be the natural person who controls the entire chain of companies (if it exists).
Origin and purpose of the register of beneficial owners?
To fight against money laundering and the financing of terrorism, the European directive of 20/05/2015 imposed on the Member States to set up, in a central register, a system of identification of beneficial owners of companies and entities. established in their territory. This is the register of beneficial owners.
Note that this is a private document, which will not be released except to certain specific entities.
Which companies are subject to this new regulation?
Each company created since 2 August 2017 must provide this document at the time of registration.
Companies created before August 2, 2017 have until April 1, 2018 to regularize their situation and provide their list of beneficial owners.
Self-entrepreneurs are not affected by this new regulation.
What information is needed to complete it?
- on the company: name, address of the registered office, legal form, competent registry, identification number.
- on each beneficial owner: civility, surname, first name, address, nationality, date and place of birth.
- on the control procedures exercised by each beneficial owner: 4 options are proposed to determine who are actually the beneficial owners:
a. the direct or indirect holding of more than 25% of the company’s share capital: the question does not arise in the case of a single-member company.
b. the direct or indirect holding of more than 25% of the voting rights: it is necessary to check whether there are preferential shares that separate the voting rights from the ownership of the share capital.
c. the exercise, by any other means, of a power of control over the management, administrative, management bodies of the company or the general meeting of shareholders or partners: if a partner who is a natural person holds less than 25 % of the capital of the company or the voting rights, it can still be considered as an effective beneficiary if the statutes allow him to have some control over the company.
The beneficial owner is the legal representative of the company, because the beneficial owner can not be identified according to any of the criteria mentioned in a) b) and c): if no individual member holds more than 25% of the share capital or rights of vote, or exercises control over the company by other means, it is the legal representative of the company who is considered to be the beneficial owner.
Clarification for the calculation of the holding of the capital of the company in the presence of a partner legal person: if a company is 30% owned by a legal person and the legal person is 90% owned by a natural person, this means that the natural person actually holds: 30% x 90% = 27% of the first company. He is therefore considered an effective beneficiary.
What are the penalties in case of no deposit?
The non filing of a declaration, the insertion of erroneous or incomplete information, whether voluntarily or not, is punishable by 6 months imprisonment and a € 7,500 fine.
Note: with each change of situation, it will be necessary to update the register of beneficial owners held by the company under penalty of being applied the same sanctions. This register will therefore be added to other mandatory registers that must be kept in companies.
If you would like assistance in making this declaration, contact us.