As indicated in our previous e-alert the Luxembourg register of beneficial owners (the Luxembourg RBE) will go live on 1 September 2019. If you are the director or manager of an entity registered with the Luxembourg trade and companies register, you will have to ensure that you comply with all your obligations by 31 August 2019 at the very latest.
Given the fast approaching deadline, we would like to share a few tips on the practical steps you will have to take.
1. Ensure you have carried out a proper analysis as to who should be registered in the Luxembourg RBE. As you may have noted, the definition of beneficial owner is quite hard to navigate. In the case of complex structures, the interpretation of the rules remains subject to many question marks, even more so as only limited guidance is currently available. Beyond a purely legal analysis, you are expected to perform a factual assessment, based on all the information available to you, of whether a natural person ultimately owns or controls the entity.
2. If you reach a conclusion that differs from the information you had previously disclosed to service providers (including professionals subject to the AML/CTF legislation, such as credit institutions, notaries, lawyers etc.), it may be useful to share your conclusion with them. Indeed, these professionals, as well as national authorities, are required to inform the Luxembourg RBE if they note any discrepancy between the information filed with the Luxembourg RBE and their own information.
3. Record the analysis you have conducted. Where applicable, take board resolutions to ensure that all directors or managers have been consulted and have agreed on the analysis.
4. Create an internal file where you will keep records of all your searches and the date on which they were made, the information you have collected (structure charts, copies of constitutional documents, share registers etc.), the advice you may have sought and your final conclusion (including board minutes, if applicable). Please keep in mind that information on former beneficial owners should be kept in compliance with applicable data protection rules.
5. As part of your communication with the beneficial owner(s) of the entity, you may wish to inform them that their cooperation is required and failure to provide all necessary information may trigger criminal penalties.
6. File all relevant information with the Luxembourg RBE by 31 August 2019 at the latest to (i) avoid criminal fines resulting from a breach of the law of 13 January 2019 on the creation of the Luxembourg RBE and (ii) benefit from a free-of-charge filing.