Legal Notice 25 of 2020 (the “Legal Notice”) was published on Thursday 27th February, 2020 transposing the 5AMLD in connection with the Register of Beneficial Owners (“RBO”) of Foundations.
By virtue of the Legal Notice, access to information on foundations has been extended and the access granted by virtue of the Legal Notice is highlighted below.
For the purpose of this article, ‘Private Foundation’ shall mean a foundation which is established for the private interest or benefit of a named person or a class of persons who are natural persons, which is different to the definition of a private foundation set out in the Second Schedule to the Civil Code, Chapter 16 of the Laws of Malta.
Competent Authorities and National Tax Authorities
National competent authorities with designated responsibilities for combating, investigating or prosecuting money laundering or terrorist financing and national tax authorities, supervisors of subject persons and any other national competent authorities shall have full access to the information held by the Registrar for Legal Persons in the RBO of a Private Foundation.
Subject Persons
Subject persons in terms of the Prevention of Money Laundering and Funding of Terrorism Regulations may request access to the information held by the Registrar for legal Persons in the RBO of a Private Foundation, for the purpose of carrying out customer due diligence.
Such a request must be accompanied by a number of documents including:
- a declaration that the purpose of the enquiry relates and will contribute to the prevention, detection and combating of money laundering or the financing of terrorism; and
- documentation of the legal relationship with the foundation or the beneficial owners, if any, and failing which a declaration explaining why the subject person’s role is not based on such a legal relationship.
General Public
Any member of the general public or organisation, other than those referred to above, may request access to the information held by the Registrar for Legal Persons in the RBO with respect to:
- a transparent foundation, which with reference to a Private Foundation shall be a foundation, which has expressly waived confidentiality by means of a statement in the statute or by a notarially authenticated notice in writing, filed with the Registrar for Legal Persons, or a foundation whose beneficiaries or any of them are legal organisations; and
- a Private Foundations which:
(i) holds or owns a controlling interest in any corporate or other legal entity not registered in the EU; or
(ii) has fiduciary duties towards a named beneficiary, or a class of beneficiaries, which is a legal organisation, and only in relation to such beneficiary which is a legal organisation.
Therefore, access by the general public to information on a Private Foundation would only be available in the cases mentioned above and would not be available unless at least one of the abovementioned criteria is present.
In such cases, the following information shall be provided by Register of Beneficial Owners on a specified private Foundation further to a successful request:
(a) the name;
(b) the month and year of birth or the date of establishment or registration in case of a legal organisation;
(c) the nationality or the state of establishment or registration in case of a legal organisation;
(d) the country of residence; and
(e) the nature and extent of the beneficial interest, of the beneficial owners of the foundation.
Such a request by the general public must be accompanied by a number of documents, including a declaration of the legal basis of their request to confirm that the purpose of the enquiry relates and will contribute to the prevention, detection and combating of money laundering or the financing of terrorism and a general description of how access to the information will so contribute.
Persons with Legitimate Interest
Any person who, in a written request, satisfactorily demonstrates and justifies, to the Registrar for Legal Persons, a legitimate interest in a Private Foundation specifically related to the prevention of money laundering and the financing of terrorism, may be provided with the information (as specified above in the case of successful requests from the general public) held in the RBO of a specified foundation.
Such a request must be accompanied by a number of documents including:
- a statement on the basis of the legitimate interest underlying the request and associated supporting documentation as may be required by the Registrar for Legal Persons to ascertain that the person or organisation has a legitimate interest in consulting the RBO of a particular foundation; and
- a declaration of the legal basis of the request to confirm that the purpose of the enquiry solely relates to and will contribute to the prevention, detection and combating of money laundering or the financing of terrorism and a general description of how access to the information will so contribute. This would need to be justified on the basis of previous activities and a proven track record of actions in that field, by means of relevant documentary evidence.
This latter declaration with respect to persons with a legitimate interest and the general public making a request for information needs to be more detailed than that required from subject persons making a request for information, as in the former cases it would need to include a general description on how access to the information will contribute to the prevention, detection and combating of money laundering or the financing of terrorism.
Credit Institutions
Credit or financial institutions in the course of carrying out their duties under laws for the prevention of money laundering and terrorist financing shall be provided with access to the information held by the Registrar for Legal Persons in the RBO of a Private Foundation.
Cases Involving Serious Risks
Access may be denied, where in exceptional circumstances, where following a detailed evaluation of the exceptional nature of the circumstances, access to such beneficial ownership would expose the beneficial owner to disproportionate risk, risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation, or where the beneficial owner is a minor or is otherwise legally incapable.
Limitations
Requests for access shall only be upheld if all required documents are provided to the satisfaction of the Registrar for Legal Persons and access shall be limited to the specific foundation and the specific beneficial owner or owners referred to in the request.