In the context of the European battle against money-laundering and the financing of terrorism, a new obligation came into force on 1 August 2017 for unlisted companies: they now need to file a document relating to their beneficial owners with the commercial court registry.

Definition of beneficial owners

This new obligation, introduced by ordinance 2016-1635 of 1 December 2016, is intended to make it possible to identify the natural persons who exercise control over a company. As defined by articles L.561-2-2 and R.561-1 of the Monetary and Financial Code, the beneficial owners are the natural persons who possess, directly or indirectly, more than 25% of the capital or voting rights of a company, or who exercise a power of control over its management, administration or leadership bodies or over the general shareholders’ assembly.

Who is affected by this obligation?

All of the unlisted legal entities which are required to be registered in the register of trade and companies are affected by this new obligation, whatever their form: SARL (limited company), SA (joint stock company), SAS (simplified joint stock company), SASU (single-person joint stock company), EURL (single-person limited company), SCI (real estate investment company), SNC (general partnership), etc.

Economic Interest Groupings (EIGs) are also affected by this obligation, as well as foreign commercial companies which have a branch in France.

The formalities and procedures of filing with the registry

All companies must file a document relating to their beneficial owners which is signed and dated by the legal representative, within the following periods:
– any company which applies to be registered from 1 August 2017 onwards must file this document with the registry at the same time as its application,
– all other companies, those registered before 1 August 2017, have a deadline of 1 April 2018 to carry out the filing of the document.

The document to file must, in particular, contain:

– The company name / legal name as well as the address of the company’s head office, its SIRET (business identification) number and its legal form,
– the surname, first name, nationality, date and place of birth and personal address of the beneficial owners, as well as the date on which the latter became beneficial owners of the company and the ways in which they control the latter.

A new document must be filed within 30 days of any new event or deed making it necessary to rectify or complete the information provided in the above document.

Transmission of the document

The decree establishes a list of the authorities who may request the transmission of this document, in particular:

– judicial magistrates;
– customs officers or officers of the Public Finance Directorate General (DGFIP);
– investigators of the AMF (Financial Markets Authority);
– any other person authorised by a judicial decision which is not subject to the normal appeals procedure.

Cost of the filing with the registry

A decree of 1 August 2016 establishes the cost of the filing depending on the situation of the company:

– for a company which is not yet registered, the cost of the filing is established at 19.76 euros;
– for a company which was registered before 1 August 2017, the cost of the filing is established at 39.52 euros;
– any subsequent filing containing a modification of the initial filing will be billed at 34.58 euros.

Sanctions

In the event of non-filing or of erroneous filing, the sanction specified is six months’ imprisonment and a fine of 7500 euros.

For natural persons declared guilty of this offence, a ban on management may also be issued on the basis of Article L.131-27 of the Penal Code, as well as partial deprivation of civil and civic rights.

Finally, automatic dissolution ensues, and a fine of 37,500 euros may be inflicted on a company if the latter is declared to be criminally liable.

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