Read on to find out how companies regulated by Law 31/1990 can implement the obligations introduced as of 21 July 2019.
When does the statement need to be filed? A written statement for registration in the Central Register of Beneficial Owners of Private Companies must be filed:
- upon incorporation of a new company (already required as part of the incorporation file with the Trade Registry),
- on a yearly basis; or
- whenever a change in the company occurs.
Within 12 months as of the coming into force of Law 129/2019, i.e. no later than 21 July 2020, companies already registered in the Trade Registry need to file a statement indicating their beneficial owners.
Who needs to comply with this obligation?
The company's legal representative is the one who needs to make sure the statement is filed. Failure to comply is a minor offence, sanctioned with fines of RON 5,000 – 10,000 (approx. EUR 1,040 – 2,080).
If the legal representative fails to file the statement within 30 days of the date when the fine is applied, the company may be wound up.
These minor offences are ascertained and sanctioned by the relevant authorities within the Ministry of Public Finance – the National Agency for Fiscal Administration and its territorial units. They can also be ascertained by the National Office for the Prevention and Control of Money Laundering.
While the Trade Registry does not have a unified practice that requires an existing company to file a beneficial owners' statement whenever it makes changes, we nevertheless recommend that the company's legal representative strive to comply with this new legal obligation.
Content and format of the statement. The beneficial owners' statement to be filed by companies organised under or functioning in accordance with Law 31/1990 must:
- indicate the individual(s) who:
- ultimately own(s) or control(s) the legal entity through direct or indirect ownership over a percentage of the shares or voting rights sufficient to ensure control, or through an ownership interest, or through other means of control, excluding entities listed on a regulated market that are subject to disclosure requirements consistent with EU law or subject to equivalent international standards ensuring adequate transparency of ownership information;
This criterion is deemed met in the case of shareholdings of 25 % plus one share or an ownership interest of more than 25 % in the legal entity.
- hold the position of senior managing officials, if – after having exhausted all possible means and if there are no grounds for suspicion – no individual meeting the above-mentioned criteria is identified or there is any doubt that the persons identified are beneficial owners;
- include all identification data of the beneficial owners, as well as the modalities in which they control the legal entity; and
- be made in front of the Trade Registry representative or in notarised form, in person or by proxy.
The obligation to file a statement regarding the company's beneficial owners was introduced by Law No. 129/2019, on preventing and combatting money laundering and terrorism financing, and amending and supplementing certain legal acts ("Law 129/2019"), which came into force on 21 July 2019.
Law 129/2019 transposed (EU) Directive 2015/849 of the European Parliament and Council, which emphasises the need to identify any private individual who owns or in any way controls a legal entity, as well as (EU) Directive 2016/2258 of the European Parliament and Council amending Directive 2011/16/EU regarding the access of tax authorities to information relevant to anti-money laundering.
For more details, the Romanian National Trade Registry Office issued a press release regarding the obligation to register beneficial owners in the Register of Beneficial Owners maintained by the Trade Registry Office (press release in Romanian available here).