Do we still have to submit the real beneficiary declaration?
In order to answer the question above, several aspects have to be mentioned as concerns the Law 129/2019 to prevent and combat money laundering and terrorism financing, as well as to mend and supplement several regulatory acts, as amended and completed through the L.108/2020, which came into force on 09.07.2020.
According to the provisions of art. 56 point (1) in the above-mentioned law, in the form published on 11.07.2019, the legal entities object of registration in the Companies Registry had the obligation to submit “(…) upon registration, yearly or whenever changes occur, a declaration concerning the real beneficiary of the legal entity, as to be recorded in the Companies Real Beneficiaries Registry”. The autonomous enterprises (regii autonome), the national companies and enterprises, as well as the companies held wholly or in part by the state are exempted from this obligation. Failure to comply with the above-mentioned obligation is a contravention and is sanctioned by fine from 5,000 lei to 10,000 lei, up to the dissolution of the legal entity.
According to these provisions, the legal representative of the company had the obligation to submit the declaration to the office of the companies registry at the place where the legal entity was registered in the following situations: upon registration, annually, within 15 days after the approval of the annual financial reports and whenever changes occur, within 15 after such changes come into effect, mentioning the identification data of the real beneficiary (full name, date of birth, personal identification number, series and number of the identity documents, domicile or residence).
However, according to the provisions of art. 62 point (1) in the same regulatory act, in the case of the companies registered before the law comes into effect, except for the national companies or enterprises, as well as of the companies held wholly or partially by the state, the deadline for submission was 12 months after the law comes into effect, i.e. 21.07.2020.
In the context of the outbreak of the COVID-19 pandemic, through the Emergency Ordinance no. 29/2020, the initial deadline for the submission of the declaration concerning the real beneficiary was extended by three months, i.e. until 14.08.2020, and through the Emergency Ordinance no. 70/2020, this was extended until 01.10.2020.
Through the Law 108/2020 on amending and supplementing the Law no. 129/2019, published in the Official Journal no. 588 on 06.07.2020, coming into force on 09.07.2020, the two articles, i.e. art. 56 and art. 62 have been amended.
Thus, two new paragraphs were added under 56, after point (1), i.e. points (11) and (12). According to point (11) are exempted from the obligation to submit the declaration:
· the autonomous enterprises (regii autonome), the national companies and enterprises, as well as the companies held wholly or in part by the state;
· the legal entities whose members are only shareholders – natural persons, when these are the only real beneficiaries.
The provisions of point (12) art. 56 regulate the situation when the real beneficiary declaration is not submitted as this obligation no longer arises for the legal representative, in which situation the National Office of the Companies Registry has the obligation to make the record in the Companies Real Beneficiaries Registry based on the documents attached to the registration request or based on the evidence held in the case of the already registered companies.
As mentioned before, art. 62 in the Law 129/2019 has also been amended, in the sense that, at present, the already registered companies, except for those mentioned under art. 56 point (11), “(…) shall submit, by care of their legal representative, a declaration containing the identification data of the real beneficiaries to be recorded in the Companies Real Beneficiaries Registry, held by the National Office of the Companies Registry."
Given those mentioned above, in order to answer the question giving the title of this article, the conclusion is that, at present, the legal representative of a company has the obligation to submit the declaration concerning the real beneficiary in the following situations:
1. When the structure of the legal entity involves other legal entities;
2. When there are changes of the shareholders in the data already held by the National Office of the Companies Registry.
Per a contrario, if the shareholders of the legal entity are only natural persons and there are no changes of the shareholders, there is no obligation to submit the declaration concerning the real beneficiaries.