Foreward by Andrew Chilvers
When the 5th Anti-Money Laundering Directive was introduced into law by the UK and EU in January 2020, for many professionals it was a much needed addition to legislation that would significantly help business transparency and combat money laundering. In essence, it was good for business and for public and professional confidence.
All jurisdictions signing up to the 5th Directive will build and maintain UBO registries that will be publicly available at any time. UBO registries will also be set up for bank accounts and trusts, although these latter two will not be publicly available but be accessed by the relevant authority such as financial intelligence units and legal advisors looking into money laundering. Investigative journalists who can show a legitimate interest in the case can also have access, which is vital if another Panama Papers (see below) is to be uncovered. Across the UK and EU national UBO registers will be set to connect through a central European platform by April 2021.
Please provide a brief overview of the UBO Register in your jurisdiction and its history?
The UBO register does not have any predecessor in Poland. It is therefore unique and was created while implementing the DIRECTIVE (EU) 2015/849 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 May 2015 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (the so called 4th AML Directive) and DIRECTIVE (EU) 2018/843 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU (the so called 5th AML Directive) into the Polish legal system.
Both directives impose upon EU Member States an obligation to establish a national “beneficial ownerships register” containing information about actual beneficiaries of companies/ partnerships and the main objective of the “beneficial ownership register” lies with counteracting money laundering and terrorist financing. As a result of this EU legislation, the Polish government created the Central Register of Ultimate Beneficiaries (Polish: Centralny Rejestr Beneficjentów Rzeczywistych – abbreviation CRBR) through the Act from 1st March 2018 on counteracting money laundering and terrorist financing (Law Journal dated 2020, pos. 971). All requirements to be met by applications for accessing data maintained at CRBR were laid down within an ordinance issued by the Polish Minister of Finances from 16th May 2018 (Law Journal 2018, Pos. 965). In addition, each application for registration of beneficial owners must be signed with a qualified e-signature or a signature confirmed by the trusted profile e-PUAP by a person empowered to represent the entity in question and then submitted through the official website of the Ministry of Finance https:// www.podatki.gov.pl/crbr/.
How can your firm ensure your clients are fully compliant with the new / existing requirements?
It is important that clients are fully aware of the applicability of the new UBO register – legislation, especially of the Act from 1st March 2018 on counteracting money laundering and terrorist financing and its main terms (definitions) such as (1) beneficial owner, (2) entities affected by the UBO register as well as (3) data to be submitted onto the UBO register in Poland. It should be stressed that the application for registration of beneficial owners is free of charge.
1. An ultimate beneficial owner shall be deemed a natural person exercising direct or indirect control over the entity in question as a result of legal or factual circumstances which enable the exercising of decisive influence.
2. The following entities shall be obliged to supply information on their beneficial owners and update them from time to time within the UBO register:
• registered partnerships;
• limited partnerships;
• limited joint-stock partnerships;
• limited liability companies;
• simple joint-stock companies which will officially be introduced into the Polish legal system as of 1st March 2021
• joint-stock companies, excluding public listed companies within the meaning of the Act of 29 July 2005 on Public Offering and the Conditions of Introducing Financial Instruments to the Organised Trade System and on Public Companies
3. Mandatory information presented onto the UBO Register include:
• identification data of the entity (its business name, organisational form, registered office, number on the Polish Court Register (KRS) and tax identification number);
• identification data of beneficial owner(s) and a member of a governing body or partner authorised to represent the entity
What changes can we expect to see emerging, are any new proposals expected?
As of today, there are no new proposals regarding recently introduced UBO registration in Poland. However, it should be vital to digitalize better the process of the registration of data within the UBO register in Poland in the future.
What other information might be relevant?
The clients should also be familiar with sanctions in the event of not complying with the UBO registration.
Failure to comply with the obligation to register the UBO (or update data previously entered onto the CRUB) may result in a penalty for such an entity of up to PLN 1 million. Representatives of the entities subject to UBO registration are also liable for damage caused by failure to submit data to the UBO within the statutory deadline (or updating such data in case of their change), as well as for submission of untrue data. Reporting untrue data to the UBO is additionally associated with criminal liability of the person submitting such data.
Finally, newly formed companies/partnerships are obliged to notify UBO no later than within 7 days from the day of their entry onto the Polish Court Registry (KRS).
