Types of companies affected
The types of companies affected include legal entities under private law (e.g. a GmbH [limited company]) as well as registered partnerships (e.g. Kommanditgesellschaft, KG [limited partnership]).
The name and surname, date of birth and place of residence of the beneficial owners as well as the nature and extent of their economic interests have to be provided in elec- tronic form to the Bundesanzeiger Verlags GmbH (German Federal Gazette).
Beneficial owners are generally natural persons who are either owners or who exercise significant control in other ways. The latter would be presumed, for example, if 25% of the voting rights or of the capital stock were held.
The disclosure requirement shall be deemed to have been fulfilled if all the information required from the documents and entries that are listed under Section 22(1) of the German Anti-Money Laundering Act is available electronically from the commercial register or other public registers.
Notification requirement for a registered KG
Previously, entering a Kommanditgesellschaft (including the legal form of a GmbH & Co. KG – a special form of limited partnership in which the unlimited partner is a private limited company) in the commercial register would have satisfied the aforementioned notification requirement.
In the context of administrative offence proceedings that are currently being conducted, the Federal Administration Office (as the competent authority for pursuing contraventions of the transparency register rules) expressed the view that in the case of a Kommanditgesellschaft the notification requirement cannot be satisfied by solely making an entry in the commercial register.
This view was justified on the grounds that it is only the liability amount and not the mandatory capital contribution that is entered into the commercial register. For this reason, it would not be possible to ascertain the size of the shareholding by inspecting the commercial register. Likewise, the amount of the capital contribution and thus the extent of the ownership interest of the general partner could not be ascertained by inspecting the commercial register. It would thus not be possible to determine the beneficial owner.
It is for these reasons that the Federal Administration Office has argued that Kommanditgesellschaften should also be required to make disclosures vis-à-vis the transparency register.
Please note: It is currently difficult to gauge whether or not the courts will follow the Federal Administration Office’s interpretation of the law. In order to avoid potential administrative offence proceedings, KGs, GmbH & Co. KGs as well as KGaAs [partnerships limited by shares] should submit supplementary disclosures to the transparency register.