In Germany, the beneficial owner can be found in the information contained in publicly-accessible registers, such as the trade, cooperative, partnership, association or enterprise registers. A transparency register was established on 26 June 2017 within the framework of the implementation of the 4th Money Laundering Directive (EU) 2015/849 of 20 May 2015. The register contains beneficial owner data in the form of an Internet portal. In concrete terms, this means that the transparency register contains information on beneficial owners from already-existing, publicly-accessible electronic registers (see above). It also means that information can be accessed in the cases in which the beneficial owners cannot be determined from other registers and therefore the beneficial owners had to be notified immediately to the transparency register.
The Law on Networking transparency registers in Europe promulgated on 30 June 2021 and the implementation of Directive (EU) 2019/1153 of the European Parliament and the Council dated 20 June 2019 on the use of financial information for combating money laundering, financing terrorism and other serious crimes (transparency register and Financial Information Act) transforms the transparency register into the full register. This means that after the law comes into force on 1 August 2021 all legal entities are required to notify their beneficial owners to the registry office of the transparency register for entry. This obligation is subject to a transitional period, which shall expire by 31 December 2022 at the latest, depending on the form of legal entity. From 1 January 2023 an entry on beneficial owners will be available in digital form in the transparency register for all German companies and other legal entities. The accuracy of the data and compliance with the registration obligations is checked by means of the discrepancy reports. Accordingly, the parties subject to § 23a of the German Money Laundering Act (GwG) are to report without delay any discrepancies they may discover between the information on the beneficial owners reflected in the transparency register and the information and knowledge they have on the beneficial owners. In the future, an entry on beneficial owners will be available in digital form in the transparency register for all German companies and other legal entities. Notifications must be filed by December 2022 at the latest, depending on the company form.
The first name and surname of the beneficial owner, his or her date of birth, place of residence, country of residence, extent of the economic interest and all nationalities are recorded.
The transparency register is operated by the Bundesanzeiger Verlag GmbH as an appointed authority. In principle, the associations and legal entities in Germany mentioned in § 20 and § 21 GwG are required to report the current information on the beneficial owner in electronic form to the transparency register. The registry office carries out a sense check of the data notified when making the entry, § 18 (3) GwG. The content of the data notified is checked if a discrepancy report has been submitted.
Incorrect, incomplete or missing entries are punishable by fines as set out in § 56(1) sentence 1 number 55 GwG. The Federal Office of Administration (BVA) is the regulatory authority responsible for imposing fines. Furthermore, any party subject to money laundering laws (e. g. banks, financial service providers, insurance institutes, real estate agents, lawyers and notaries to the extent that they buy or sell property for their clients) and authorities must report any anomalies they notice in the transparency register as set out in § 23a GwG. The failure to report an anomaly as required is also punishable by a fine (§ 56(1) para. 1 No. 66 GwG). Since the introduction of the obligation to report discrepancies under § 23a GWG (1 January 2020), the parties under the reporting obligation have made a total of 8,858 discrepancy reports in 2020 (in 2021: 18,055). Authorities who are allowed to inspect the transparency register as part of fulfilling their duties have not reported any anomalies in 2020 and 2021.
Where the fine exceeds an amount of €200, legally binding and indisputable decisions on fines are published on the BVA website. (2)
Information about beneficial owners in the transparency register can be accessed by government authorities within the scope of their statutory tasks, persons and bodies that are under the legal obligation to combat money laundering in the performance of their due diligence obligations and, since 1 January 2020, in accordance with the requirements of the amending Directive to the 4th EU Money Laundering Directive (Directive [EU] 2018/843), the general public also have access (§ 23(1) GwG). In this context, a judgment of the European Court of Justice of 22 November 2022 in the joined cases C-37/20 and C-601/20 provides that the rule of the EU Money Laundering Directive, which requires in the whole EU that information on the beneficial owners of companies or other legal persons entered in the transparency register be accessible to all members of the public in all cases, is invalid.
The Independent Administrator shall determine for the companies invited to report whether they have an entry in the transparency register and whether this entry is plausible on the basis of the information available to it and to be obtained. (3)
Data in the transparency register is not available in the format of open data. If interested parties wish to obtain information from the Transparency Register, they need to complete a one-time registration form on the website www.transparenzregister.de. The individual registration steps are explained in greater detail in the brief guide “Einsichtnahme in das Transparenzregister für Mitglieder der Öffentlichkeit” (How members of the public obtain information from the Transparency Register).
Where the beneficial owner has legitimate interests that require protection, the office that operates the register can still restrict inspection of the transparency register. The beneficial owners must support this with facts to substantiate why obtaining information from the register would put them at risk of becoming victims of certain crimes (e. g. blackmail) (§ 23(2) GwG). As of 9 July 2021, restrictions were set for 2,278. From 2021 onwards, the registry office will produce annual statistics on the number of limitations granted and the reasons for the limitations, publish these on its website under downloads (direct link to the statistics in PDF format) and send it to the European Commission (see § 23(2) last sentence GwG latest version).
To cover the administrative cost, a fee of €1.65 is due for each document that is inspected (see list of fees in the special fees scale for the transparency register of the Federal Ministry of Finance dated 8 January 2020, Transparenzregistergebührenverordnung [TrGebV] (transparency register fees scale)). The fees charged depend on the respective register but they are approximately the same as the fees incurred for inspecting the Transparency Register.
From 1 January 2021 the law enforcement authorities and the central unit for investigating financial trans- actions (Financial Intelligence Unit, FIU) has been given automated access to all data in the transparency register within the context of fulfilling their duties (cf. § 26a GwG). In future, this option will be extended to the supervisory authorities, the Federal Central Tax Office, the local tax authorities and the Office for the Protection of the Constitution at federal and State level as a result of the Transparency Register and Financial Information Act.
EU member states are currently working with the EU Commission to network European transparency regis- ters pursuant to Art. 30 ff. of the amending Directive to the 4th EU Money Laundering Directive (Directive [EU] 2018/843). The result of this networking will be access to the transparency registers of all member states via a shared European platform (“BORIS”).
(1) The term “transaction” here means all acts which have the purpose or the effect of a monetary movement or other asset movement.
(2) Federal Office of Administration (2022): Decisions on fines (transparency register). URL: https://www.bva.bund.de/DE/Das-BVA/Aufgaben/T/Transparenz- register/Bussgeldentscheidungen/bussgeldentscheidungen_node.html [Accessed on 29 November 2022].
(3) This is done in accordance with the terms of reference for the Independent Administrator adopted by the D-EITI MSG.