Central Register of Actual Beneficiaries

13 October 2019 will witness the coming into force of the legislative Act of 1 March 2018 regarding counteraction of money laundering and terrorism financing (Dz.U. 2018, item 723, hereinafter referred to as “the Act”). One of the effects will comprise implementation in the Polish legal system of a Central Register of Actual Beneficiaries (“the Register”).

The purpose of establishment and operation of the Register is to counteract money laundering and financing of terrorism by disclosing and processing in the public realm the details of actual / ultimate beneficiaries of companies.

The government authority competent with regard to all matters concerning the new Register shall be the minister charged with public finance (“the Minister”), who will also be the administrator of the data gathered in the Register.

Information gathered in the Register shall be open for perusal to the general public (on a free of charge basis, via information and communications technology devices).

The Register will be designed as an ICT system processing information pertaining to the actual beneficiaries / beneficial owners of the following:

• General partnerships,
• Limited partnerships,
• General partnerships limited by shares,
• Limited liability companies and
• Joint stock companies, unless they are publicly listed.

The following information shall be subject for submission to the Register:

– Concerning the company:

1. 1. Name (business name),
   2. Organisational form,
   3. Registered seat,
   4. National Court Register number,
   5. NIP taxpayer identification number;

– Concerning the actual beneficiary / beneficial owner, members of corporate bodies and partners empowered to represent the company:

1. 1. Given name, surname,
   2. Citizenship,
   3. Country of residence,
   4. PESEL personal identification number (or the date of birth for persons who do not have a Polish PESEL number),
   5. Information about the size and nature of the stake and/or about the corporate rights held by the actual beneficiary.

The information referred to above ought to be submitted to the Register within 7 days following entry of the company to the National Court Register or, in the event of amendments affecting companies already registered, within 7 days following the relevant change.

Entities already entered in the National Court Register as at launch of the Register (i.e. companies with National Court Register entries predating 13 October 2019) will have 6 months following this day to submit the relevant information about their actual beneficiaries.

Submission of information to the Register shall be effectuated electronically by a person authorised to represent the company.

Submission of information to the Register will be free of charge.

Submission of information to the Register shall bear a qualified electronic signature or a signature confirmed via a trusted ePUAP profile. The information shall be accompanied by a declaration in which the person submitting it attests to its truthfulness on pain of criminal liability.

Companies which fail to submit information to the Register within the statutory deadline shall be liable to a fine up to PLN 1,000,000.

Information about actual beneficiaries set out in the Register will be made available free-of-charge at the request of a person seeking such information.

Submission of requests for information from the Register as well as provision of information will proceed electronically.

Information about actual beneficiaries will be provided within 5 minutes after submission of the information request in the case of information current as at the moment of the request. In the case of queries concerning historical information for a period specified in the request, the information shall be made available by the end of the next business day.

The Act defines an actual beneficiary as:

a natural person or natural persons exercising direct or indirect control over the client by way of rights held arising from legal or factual circumstances which enable exertion of decisive influence on acts or actions taken by the client,

or

a natural person or natural persons on behalf of whom economic relations are established or an occasional transaction is effectuated,

including:

• In the case of a client who is a legal person other than a company whose securities are admitted to trading in a regulated market subject to information disclosure requirements arising from European Union law or from corresponding laws of a third country:

1. 1. A natural person who is a shareholder of the client holding ownership title in more than 25% of the aggregate number of shares in such legal person,

   2. A natural person disposing of more than 25% of the aggregate number of the votes in the client’s decision-making body, also as a pledgor or a party entitled to use and/or pursuant to agreements with other entities entitled to vote,

   3. A natural person exercising control over a legal person or legal persons who, in aggregate, are entitled to more than 25% of the aggregate number of the client’s shares or, in aggregate, dispose of more than 25% of the aggregate number of the votes in the client’s corporate body, also as a pledgor or a party entitled to use and/or pursuant to agreements with other entities entitled to vote,

   4. A natural person exercising control over the client by way of holding vis a vis such legal person the rights referred to in art. 3.1.37 of the legislative Act of 29 September 1994 regarding accountancy (Dz.U. 2018, items 395, 398 and 650), or

      art. 3 ust. 1 pkt 37)

      Whenosever this act refers to a dominant unit, this shall be taken as denoting an entity which is a commercial company or a state-owned enterprise exercising control over a subsidiary, in particular:

      a) Holding, directly or indirectly, a majority of the aggregate number of votes in the subsidiary’s decision-making body, also on the basis of agreement with other entities entitled to vote exercising voting rights in accordance with the will of the dominant entity, or

      b) Who is a shareholder in a subsidiary and is empowered to decide on the financial and operating policies of such subsidiary independently or through persons and/or entities designated by it pursuant to an agreement executed with other entities entitled to vote holding, in accordance with the deed of incorporation or articles of association, jointly with the dominant entity, a majority in the aggregate number of votes in the decision-making body, or

      c) Who is a shareholder in a subsidiary and is empowered to appoint and remove a majority of the members of the management, supervisory and/or administrative bodies of such subsidiary, or

      d) Who is a shareholder in a subsidiary in which more than half of the composition of the management, supervisory and/or administrative bodies in the last financial year, during the current financial year and until preparation of the financial report for the current financial year is accounted for by persons appointed to such positions as a result of exercise by the dominant entity of its voting rights in the bodies of such subsidiary, unless another entity or person holds with respect to such subsidiary the rights referred to in letters a, c or e, or

      e) Who is a shareholder in a subsidiary and is empowered to decide on the financial and operating policies of such subsidiary pursuant to an agreement executed with such subsidiary or to such subsidiary’s deed of incorporation or articles of association;

   5. A natural person holding a senior management position in the case of documented impossibility of determining, or of doubts concerning, the identities of the natural referred to in tiret one, two, three, and four above and in the event that there is no suspicion of money laundering or financing of terrorism,

• In the case of a client who is a trust:

1. 1. The founder,

   2. The trustee,

   3. The supervisor (if appointed),

   4. The beneficiary,

   5. Any other person exercising control over the trust,

• w przypadku klienta będącego osobą fizyczną prowadzącą działalność gospodarczą, wobec którego nie stwierdzono przesłanek lub okoliczności mogących wskazywać na fakt sprawowania kontroli nad nim przez inną osobę fizyczną lub osoby fizyczne, przyjmuje się, że taki klient jest jednocześnie beneficjentem rzeczywistym.

Michał Boryczka

m.boryczka@gessel.pl