It seems as if the current trend we're seeing in the UK for increasing transparency around the ownership of property interests is spreading to the continent, with the Council of the European Union and the EU Parliament announcing their intention to create a register of the beneficial ownership of all foreign entities that own real estate in the EU.
The proposed register forms part of a new package of protections against money laundering and terrorist financing which were announced by the Council on 18 January 2024. As part of anti-money laundering ("AML") regulations, the agreement will attempt to bring some consistency and increased transparency to the disclosure of information relating to the beneficial ownership of property located in EU Member States. The proposal recognises that beneficial ownership is based on two components; that of ownership of a significant proportion of the shares in the property-holding entity, and control of the entity due to the ability to exert significant influence over those who make decisions on behalf of the entity.
This reflects the current EU AML regulatory framework and also mirrors the disclosures required in the UK with regards to both the People with Significant Control ("PSC") regime under the Companies Act 2006 and the provisions of the Economic Crime (Transparency and Enforcement) Act 2022 ("ECTEA") which introduced the concept of the Register of Overseas Entities that own property in the UK. Under the PSC regime, all UK incorporated companies and Limited Liability Partnerships have to keep and maintain a register of those persons with significant influence and control over the company. Broadly speaking, this will be a person that holds 25% or more of the shares or voting rights in the company or who can otherwise exercise significant influence or control over the company. The Register of Overseas Entities established pursuant to ECTEA looks to identify the ultimate beneficial owner of overseas entities which own property in the UK, with the ownership threshold again being set at 25% of shares or voting rights over the property-owning entity.
Interestingly, the EU agreement is looking to impose a look back to the ownership position as at 1 January 2014. The ECTEA register adopted a similar retrospective position, but what is not clear from the information released by the EU Council on the new agreement is whether entities incorporated outside the EU which owned EU property on or after 1 January 2014, but have since disposed of their interests, will need to declare their historic holdings. The information likely to need to be disclosed will include the price paid for the property, its history (presumably its ownership history), details of any mortgages or other encumbrances and whether there are other rights affecting the property.
Whilst it does not appear that the register will be publicly available per se, the agreement does indicate that in addition to access being provided to the appropriate public authorities, members of the public with a legitimate interest (expressly including members of the press) may be entitled to access the register.
The EU Commission's proposal on the new AML regulation provides some further detail as to how the retention of this information will be organised, stating that the beneficial ownership of entities incorporated outside the EU (including express trusts and similar arrangements) shall need to be recorded in a central register maintained by each Member State at the point at which that entity acquires real estate in that territory. Each Member State must then allow the competent authorities access to that register to allow for the identification of the person (natural or legal) which owns the real estate asset in a timely manner. As such, it appears that each Member State will be required to either establish a register of this nature, or amend existing registration systems to allow for the collation of this information, but that the various registers will be accessed through one central portal.
We have summarised below the current position with regards to the disclosure of beneficial ownership in some of the jurisdictions served by our EMEA offices.
Spain
In Spain, all transactions carried out by legal entities before a notary public require the declaration of the ultimate beneficial owner of the intervening company.
Although notarisation of real estate contracts is required for them to be registered at the Land Registry, registration of property in Spain is discretionary (i.e. the effectiveness and validity of transactions over real estate assets is not conditional on their registration at the Land Registry, save for exceptions), but it is advisable because it provides evidence of the owner's title to the property and/or charges and encumbrances to which it is subject. Therefore, protection is afforded against third parties. As a result, companies involved in real estate transactions that are notarised/and registered at the Land Registry must disclose their ultimate beneficial owner.
Moreover, Spain has two key entities whose role it is to record beneficial ownership: the Registry of ultimate beneficial owners (Registro de Titularidades Reales) and the Central Registry of ultimate beneficial owners (Registro Central de Titularidades Reales).
The former was created in 2018 as a result of the transposition of Directive EU 2015/849 of 20 May 2015 on AML and terrorism financing, and is a public registry that is permanently updated and managed electronically by the Commercial Registry. It processes and publicizes the ultimate beneficial owners of Spanish companies (i.e. the natural persons that, directly or indirectly, own more than 25% of their share capital or voting rights, or that control them by any other means) that submit their financial statements before the Commercial Registry, as well as the so-called assimilated beneficial owners, that are the companies' directors.
The latter registry was created in 2023 and during a transitional period, data will be transferred to this body from the different registries (e.g., the Land Registry) and databases with jurisdiction over the collection of data on ultimate beneficial owners. Spanish companies must declare their ultimate beneficial ownership at the time of their incorporation and when a change in their ultimate beneficial ownership occurs. Failure to comply with this obligation will result in penalties, the extent of which will be determined in accordance with the seriousness of the infraction. The Central Registry of ultimate beneficial owners is not a public registry, it is managed electronically by the Ministry of Justice, and it is connected to the central European platform through the BORIS system (Beneficial Ownership Registers Interconnection System). Its purpose is to collect and provide information to the authorities foreseen in Spain's principal AML law (10/2010 of 28 April) and any individual or organization that can demonstrate a legitimate interest on the beneficial ownership relating to all Spanish legal entities, trusts and similar structures without legal personality that operate in Spain.
Germany
In Germany, the registration of a natural person or legal entity as legal owner of a property in the land register (Grundbuch) ("Land Register") is mandatory and necessary in order to effect the transfer of the title to the property. The Land Registry has been in place since the late 19th century; it can be accessed by certain accredited groups (among others, notaries) and, in cases of legitimate interest, also by individual persons and/or legal entities.
In addition, since 2017, legal entities (both corporations as well as partnerships) have had to be registered in the so-called transparency register (Transparenzregister) ("Transparency Register"). This central German register contains, inter alia, information on the ultimate beneficial owner/s of legal entities (i.e. the natural persons that – directly or indirectly – own more than 25% of the share capital or control more than 25% of the voting rights of the legal entity or control the legal entity by comparable means) and further details regarding the interest which the relevant beneficial owner holds in such legal entity. Each legal entity has to obtain the required information and provide such information to the Transparency Register. The obligation to register the relevant information with the Transparency Register applies to (i) corporations and partnerships registered in Germany and (ii) legal entities registered outside of Germany, to the extent such foreign legal entities either directly or indirectly (via a corporate structure) hold real estate in Germany or have entered into a contract to (directly or indirectly) acquire real estate in Germany. However, foreign legal entities are exempt from the requirement to be registered with the German Transparency Register, if they are registered in a transparency register of another EU country. Access to the Transparency Register was previously open to all; however, in 2022, the European Court of Justice ruled that access is to be restricted to persons with a legitimate interest; the requirements for which are currently under discussion.
Due to the existence of the Land Register and the Transparency Register in Germany, which comprise information on (i) the registered owner of a property and (ii) the beneficial owner of a legal entity that owns real estate either directly or indirectly, German authorities (and other persons with legitimate interest) can already identify the ultimate beneficial owner of a specific property. Consequently, the recently announced proposals by the EU Parliament and the EU Council have not been discussed extensively in Germany. Nevertheless, the further process of the conversion of the political agreement into actual legislation will have to be followed closely, including the details of such (draft) legislation regarding certain elements of the transparency register that were proposed, such as the price paid for a real property and the level of detail on the usage of the property. Another relevant question will be the capabilities of such a transparency register, e.g. whether it is intended that it will be possible to identify all present (and possibly historic) ownership of real estate of a certain ultimate beneficial owner, or whether the information that can be obtained from such a register is limited to a verification of the legal (and beneficial) ownership regarding specific individual real properties.
France
In France, every real estate transaction must be officially registered at the relevant land registry (service de la publicité foncière). The land registry provides public information regarding the legal status of a property. It allows third parties to obtain various information about the property, such as the identity of the successive owners of an asset, should it be an individual or a legal entity. Anyone can obtain information published by a land registry without having to prove any particular interest.
In addition, companies that own real estate are also subject, like any other company, to an obligation to declare their beneficial owners. The notion of beneficial owner has been implemented in France as a result of the transposition of the Directive EU 2015/849 of 20 May 2015 on AML and terrorism financing. The notion of beneficial owners is defined in the French Code Monétaire et Financier as natural persons who ultimately own or control the company or on whose behalf a transaction or activity is carried out. Such beneficial owners are those who directly or indirectly hold more than 25% of the company's capital or voting rights, or exercise, by any other means, a controlling interest in the company.
Since 1 April 2018, all companies, regardless of their corporate form, have had to declare their beneficial owner in a register of beneficial owners (registre des bénéficiaires effectifs – RBE –) at the commercial court registry (greffe). This declaration is carried out at the registration of the company and updated if information regarding the beneficial owners has changed. In the event of a false, incomplete or missing declaration, the company and the person responsible for carrying out the formalities can be subject to penal sanctions, such as a fine or even a prison sentence.
French AML policy was further strengthened by a regulation dated 12 February 2020, transposing the Fifth AML Directive (EP and Cons. EU, Directive (EU) 2018/843, 30 May 2018). Since then, some national authorities of control and some identified entities responsible for AML and anti-terrorist financing obligations can fully access all available information relating to beneficial owners, without having to justify a legitimate interest. This new regulation also allows members of the public to access some limited information of any beneficial owner of a company, such as their name, surname, any pseudonym, date of birth, country of residence and nationality of beneficial owners, as well as the nature and extent of the beneficial interests they hold in the company or entity. Access to this information is free of charge. It can be accessed via a public platform, which centralizes information regarding beneficial owners.
The free access granted to the public to the information regarding the beneficial owners has been held to be a serious breach of the Charter of Fundamental Rights of the European Union, by way of a judgment handed down by the Court of Justice of the European Union (CJEU) on 22 November 2022. The Court ruled that the arrangements for public access to the register of beneficial owners were contrary to the rights to respect for private and family life and to the protection of personal data. However, after a short period of time during which the information regarding the beneficial owners were not accessible to the public, the access has been reestablished. However, the French Minister of the Economy, Bruno Lemaire, in a press release dated 16 January 2023, stated that level of access to beneficial owner's information will be reviewed in order to comply with the decision of the CJEU.
As demonstrated above, many EU jurisdictions have already established registers to identify the beneficial ownership of properties, and the EU Council recognises that ownership of assets across different Member States is not entirely unusual. In such circumstances, a certificate evidencing registration of the beneficial ownership information in a register held by one Member State shall be considered as sufficient proof of registration. There is still plenty of detail to emerge as to the practicalities of the proposed centralised register.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
