Legal alert no. 39
Further to the recent publication of Law no. 83/2017 of August, 18th that establishes rules and actions against anti-money laundering and to prevent the financing of terrorism, it has been additionally published on August 21st in the Portuguese Official Gazette, Law no. 89/2017 which transfers the provisions of Chapter III of Directive 2015/849 of the European Parliament and Counsel of May 20th, 2015 regarding the prevention of using the financial system for money laundering purposes or for terrorism financing. Furthermore it approves the Legal Regime of the Beneficial Owners (“CBRO”), foreseen in article 34 of the Law no. 83/2017 of August, 18th.
The referred Law also amends the following legal codes and legislation: (i) Land Registry Code; (ii) Commercial Registry Code; (iii) Decree-Law no. 352-A /88, dated from October 3rd, which regulates the incorporation and operation of offshore trust companies or branches in the Madeira Free Zone; (iv) Decree-Law no. 149/94, of May 25th that rules the registration of trust instruments; (v) Notary Code; (vi) Regime of the National Register of Legal Persons; (vii) Emolument Registries and Notary Regulation; (viii) Decree-Law no. 8/2007, of January 17th, which creates the Simplified Business Information; (ix) Decree-Law no. 117/2011, of December 15th, which approves the Organic Law of the Ministry of Finance; (x) Decree-Law no. 118/2011, of December 15th, which approves the organic law of the Tax Authority; (xi) Decree-Law no. 123/2011, of December 29th, which approves the organic law of the Ministry of Justice; (xii) Decree-Law no. 148/2012, of July 12th approving the organic law of the Institute of Registries and Notaries, I.P.; (xiii) Decree-Law no. 14/2013, of January 28th, which complete the systematization and harmonization of the legislation related to the Tax Identification Number; and (xiv) Corporate Income Tax Code.
The CBRO is made up by a database, managed by the Institute of Registries and Notaries, of mandatory registration in the cases foreseen by law, with data information related to natural persons who, although indirectly or through a third party, have ownership or effective control over the entities that are subject to it.
The approval and creation of the CBRO intends to identify and to maintain the registration of natural persons, who have the control of legal entities or similar entities, assisting in the fulfillment of the duties of preventing anti-money laundering and financing of terrorism.
The CBRO is applicable to companies, as well as to the following entities:
1. Associations, cooperatives, foundations, civil and commercial companies, as well as other personalized collective entities that carry out business activity, practice legal act or business in the national territory, which implies mandatorily to obtain and apply for a Portuguese tax payer number;
2. The representations of international legal persons or of foreign law that carry out business activity in Portugal;
3. Other entities that, performing their activities different from those of their associates, do not have legal personality;
4. The fiduciary management instruments registered in the Madeira Free Trade Zone (trusts);
5. The external financial branches registered in the Madeira Free Zone;
6. Trust funds and other collective interest centres without legal personality with a similar structure or functions that do not fulfil with the previous numbers, in some particular cases.
The following entities are expressly excluded by the law from the scope and provisions of the CBRO:
1. Diplomatic and consular missions;
2. Independent services and administrative entities;
3. Bank of Portugal and the Regulatory Entity for Social Communication;
4. Companies with shares traded on a regulated market;
5. Consortium and joint ventures;
6. Building or group of buildings condominiums that are incorporated under a horizontal property regime, when the total net asset value does not exceed the amount of € 2,000,000.00, and a single holder or joint venture that do not hold a stake higher than 50%.
This Law enters into force within the following 90 days after the date of its publication, that is on November 20th, 2017, and it is expected that, until then, the regulation necessary for the operation of the registration will be published.
To access to the full version of Law no. 89/2017 dated from August 21th, please click here.