Royal Decree 609/2023 of 11 July – in force since 19September 2023 – creates the Central Registry of Beneficial Ownership (CRBO),centralized for Spain. The Fourth EU Directive 2015/849, on the prevention ofthe use of the financial system for money laundering or terrorist financing –like the Fifth EU Directive 2018/849 – requires, among the measures to combatthese crimes that distort the economic system, the creation of a Register of Beneficial Ownership in EU countries. SpanishLaw 10/2010, on the prevention of money laundering and the financing of terrorism (AML-FT Law) refers to this in its Provisionsnos. 3 and 4.
Beneficialowner: natural person with direct or indirect control.
- Naturalperson(s) on whose behalf an asset, a business relationship is purported, oroperations are intended to be performed.ç
- The natural person or persons who ultimately own or control, directly or indirectly, more than 25% of the capital or voting rights or who otherwise exercise control, directly or indirectly, of a legal entity; and in the case of trusts (excluding companies listed in the EU or stock markets with equivalent international standards on transparency on ownership information). Where no natural person controls more than 25 per cent, the director(s) shall bedeemed to exercise such control.
- Trusts: the settlors, the fiduciaries; the protectors, if any; thebeneficiaries or, where they are yet to be designated, the category of personsfor the benefit of whom the legal structure has been created or operates; andany other natural person who ultimately exercises control of the trust throughdirect or indirect ownership or through other means.
- The RCTIR will obtain its information in a first uploading from the competent registries with data of this nature (e.g.Companies Registers, Notaries’) and then with daily updates, mainly of the mandatory documentation to file annual accounts in the Companies Register. It will be connected to the central European platform via the BORIS system (Beneficia Ownership Registers Interconnection System).
What data does the CRBO collect?
The CRBO collects identification data of the Beneficial Owners :
a) Spanishlegal entities (e.g. SA, S.L., Foundations, Associations) formed under Spanishlaw or with domicile or a branch in Spain).
b) Entities and structures without their own, separate legal entity that have in Spain the actual seat of management or any activity, or are managed by Spanish residents, intending to establish business relationships, occasional operations (one-off) or acquire real estate in Spain.
Obligations for obliged entities to update information: Access, data verification and updating.
a) First a supplementary declaration to the CRBO must be file, within 2 months from the entry into force of RD 609/2023 (1/11/2023): if the CERBO data are not complete, the entities must file this declaration (- assuming that the first data dump by the different Registers has been made within the 9 months term.)
b) When there are changes in beneficial ownership: The entity's Directors or management body, within 10 days of becoming aware of the change, must submit a new declaration with id details of the new beneficial owners to the Companies Registry.
c) General: All subject parties, which do not declare their beneficial ownership in any Registry,as this declaration is not regulated, must submit to the CRBO: (i) a firstdeclaration within 1 month of its formation, or from becoming obliged todeclare its beneficial owner, (ii) complementary declaration within 10 daysof any change in beneficial ownership, and (iii) annual declaration, in the month of January.
Failure to comply with these obligations, will cause legal entities to be blocked at the Companies Register and be subject to an administrative infringement, the detailed regulations of which are entrusted tothe Ministry of Justice.
Who can access the CRBO Beneficial Ownership data?
a) Notaries public,Registrars and national authorities of other EU member states, with competencein money laundering and terrorist financing related crime offences.
b) Subject parties under Art. 2 of the AML-FT Law, to comply with their obligation to check beneficial owners, -upon payment of a fee despite being a legal obligation (!)–as the CRBO is not a substitute of their broader obligation of due diligence, to complete the additional checks in the other registries within their reach.
c) Other persons or entities that proof a legitimate interest and upon payment of a fee, may access certain data. The entity being consulted, its beneficial owner(s), the media and civil society organisations involved in the prevention and fight against money laundering and terrorism financing are presumed to have legitimate interest.
Conclusion: More disclosure requirements, controls and formalities.
CRBO in connection with BORIS will be a tool ofgreater transparency for authorities, and also for entities and economic players to help reduce legal risks related with money laundering regulationsand an inherent tool to corporate compliance programs.
On the other hand, it imposes additional tasks to the already large list of reporting obligations to be carried out by companies which will become a priority need especially when the entity undertakes processes that may entail direct or indirect alterations in the composition of its capital and control holders (sales of shares, capital increases, corporate or group reorganization, etc.). Last,but not least, the lack of regulatory development of the sanctioning regime only is a gap of legal uncertainty.
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