From 24 July 2017, UK companies whose shares are admitted to trade on the London Stock Exchange’s AIM market, and other companies listed on prescribed markets, will no longer be exempt from the requirements to keep and maintain a PSC register and to file information at Companies House about the persons who ultimately control them.
On 6 April 2016, the majority of companies and LLPs incorporated in the UK became subject to the transparency obligations contained in Part 21A of the Companies Act 2006. The aim of this regime is to ensure that the persons with significant control (“PSCs”) in relation to a UK company can be identified, regardless of any complex arrangements or structures that may be used in attempts to conceal their identity. This information is to be: (i) kept on a PSC register, which the relevant company must ensure is up to date, and (ii) filed at Companies House to be available to the public.
Certain groups of UK companies who would otherwise be required to maintain a PSC register were exempt from the requirement to do so, because the government considered them to already be subject to adequate transparency requirements. Companies listed on AIM and other prescribed markets were previously included in this group of exempt companies. It was confirmed on 23 June 2017 that this would no longer be the case, but a four-week grace period was included in the legislation to allow these companies time to investigate who has significant control in relation to them. AIM companies will need to be ready to comply with the PSC regime obligations from 24 July 2017.
Companies exempt from the requirement to keep and maintain a PSC register – the position prior to 23 June 2017
The UK companies previously exempt from having to maintain a PSC register were: (i) issuers to which Chapter 5 of the FCA’s Disclosure Guidance and Transparency Rules (“DTR 5”) applies1; (ii) companies with voting shares admitted to trading on a regulated market in an EEA State other than the United Kingdom2; and (iii) companies with voting shares admitted to trading on one of the markets listed in Schedule 1 to The Register of People with Significant Control Regulations 2016 (the “2016 PSC Regulations”) which is comprised of markets in Israel, Japan, Switzerland and the United States (including the New York Stock Exchange and NASDAQ)3 (the “Schedule 1 Markets”).
Broadly speaking, DTR 5 applies to the following issuers:
- UK companies with shares admitted to trading on a regulated market (such as the Main Market of the London Stock Exchange (LSE));
- UK public companies with shares admitted to trading on a prescribed market (which includes AIM and the NEX Exchange (formerly the ISDX Growth Market)); and
- other companies with shares admitted to trading on a regulated market whose home state is the UK.
As a result, AIM-listed companies did not need to maintain a PSC register, and could rely on the information they were already required to make publicly available.
The Information about People with Significant Control (Amendment) Regulations – bringing AIM companies within the scope of the PSC regime
On 19 April 2017 Companies House published a press release titled “Changes to UK anti-money laundering measures”4 which outlined incoming changes to be made to the PSC register regime. This press release stated that the exemption for DTR5 companies would be changing but stated that companies traded on an EEA market or on a Schedule 1 Market would remain exempt, which led many to suspect that the exemption would be retracted for companies traded on prescribed markets.
The Information about People with Significant Control (Amendment) Regulations 2017 were published on 23 June 2017 and came into force on 26 June 2017 (the “2017 PSC Regulations”).
Regulation 5 of the 2017 PSC Regulations makes it clear that, instead of DTR 5 Companies, the PSC register exemption in section 790B(1) only applies to companies “with voting shares admitted to trading on a regulated market which is situated in an EEA State” and companies with shares listed on Schedule 1 Markets. UK companies traded on other markets, even if they are subject to DTR 5, will now need to maintain a PSC register.
The government has been considering removing AIM companies from the PSC register regime for some time. On 3 November 2016 the Department for Business, Energy & Industrial Strategy published a discussion paper entitled “Implementation of the Fourth Money Laundering Directive” (the “BEIS Discussion Paper”), which stated that the government was considering bringing companies listed on AIM and ISDX (as it then was) within the scope of the PSC register regime.5 This is because the transparency requirements set out in the Fourth Money Laundering Directive ((EU) 2015/849) (“4MLD”) (which the PSC register regime aims to implement in the UK), allows an exemption for companies listed on regulated markets6 (such as the Main Market of the London Stock Exchange) but does not expressly allow for an exemption for companies listed on prescribed markets. By passing the 2017 PSC Regulations, the government has clearly looked to more closely replicate the provisions of 4MLD. Interestingly, the 2017 PSC Regulations were passed on the same day as the deadline for national transposition of 4MLD by Member States, and so it seems the government considered this change an important part of reflecting 4MLD in UK law.
Although these changes were foreshadowed for some time, they do add another layer to the disclosure obligations to which AIM companies are subject, and whether they assist the government in achieving its stated aim of increasing transparency remains to be seen.
Other changes made by the 2017 PSC Regulations
Entities already subject to the PSC regime are now subject to a new duty to update it within 14 calendar days of receiving information about a change and to file that information at Companies House within a further 14 days.7 Previously, a company was only required to file information about its PSCs at Companies House: (i) on incorporation; and (ii) as part of its annual Confirmation Statement.
That this change has been made is unsurprising – under 4MLD Member States are to ensure beneficial ownership information is “adequate, accurate and current”8. The government made it clear in paragraph 72 of the BEIS Discussion Paper that it did not think that the requirement for records to be “current” was being fully met. By way of example, if a company files its Confirmation Statement, and its PSCs change in the following month, there could be a gap of 11 months before the public record is brought up to date. What is surprising is that the new requirement to make and file changes within 14 and 28 days respectively is a significantly shorter period than that proposed by the government in the BEIS Discussion Paper – it had proposed that any change to the PSC register must be notified to the registrar within six months of the change occurring.9
In addition, AIM companies are not the only entities to become subject to the PSC regime on 24 July 2017. ‘Eligible’ Scottish partnerships will also need to identify any persons with significant influence or control. An ‘eligible’ Scottish partnership is either: (a) a limited partnership registered in Scotland; or (b) a general partnership constituted under the law of Scotland in which each member is either: a limited company; or an unlimited company; or a Scottish partnership, each of whose members is a limited company. Unlike companies and LLPs, eligible Scottish partnerships are not required to keep and maintain their own PSC registers, but they are required to: (i) identify registrable persons and legal entities in relation to the partnership; and (ii) file this information at Companies House.