29 Oct Legislative developments in the field of money laundering prevention
In recent years, Spain’s regime for the prevention of money laundering and the financing of terrorism has undergone numerous changes. One of the main novelties is that from now on, natural or legal persons who, in a business or professional manner, provide all or some of the services classified as “services to companies” -included in article 2.1.o) of the Law- are obliged to register with the Trade Register.
In recent years, Spain’s regime for the prevention of money laundering and the financing of terrorism has undergone numerous changes. In this sense, Europe has approved Directive 2018/843/EU of the European Parliament and of the Council of 30 May 2018, which amends the previous Directive of 2015. Now, all European member States will have to transpose this new Directive by January 10, 2020.
These continuous reforms are due, among other reasons, to the latest terrorist attacks in Europe, which have warned of the emergence of new trends in the financing of terrorist operations, as well as the development of new technologies and other alternative financing systems, that are gaining popularity and play an important role in the matter.
Within this legislative framework, Royal Decree-Law 11/2018 of 31 August 2018, on the transposition of Directives, also includes the transposition of the previous Directive on the prevention of money laundering of 2015 (already modified by the aforementioned Directive 2018/843/EU), as its transposition period has expired.
One of the main novelties of the aforementioned Royal Decree-Law is contained in its single additional provision. From now on, natural or legal persons who, in a business or professional manner, provide all or some of the services classified as “services to companies” -included in article 2.1.o) of the Law- are obliged to register with the Trade Register.
In accordance with the aforementioned article 2.1.o), such services are as follows:
Incorporate companies or other legal persons.
To exercise functions of management or of Non-Board Secretary or external advisors of a company, member of an association or similar functions in relation to other legal persons or to arrange for another person to exercise such functions.
Provide to a registered office or domicile, postal, administrative or any other related services to a company, an association or any other legal instrument or person.
Act as a trustee in a trust or similar legal arrangement; or to arrange for another person to exercise such functions.
Act as a shareholder on behalf of another person, except for companies listed on a regulated market in the European Union, which are subject to disclosure requirements in accordance with European law or equivalent international standards that ensure adequate transparency of ownership information, or arrange for another person to exercise such functions.
Such natural or legal persons, before commencing their activities, must register in the corresponding Trade Register of their domicile. The Trade Register will register Individual entrepreneurs and legal persons in accordance to its regulation, while individual professionals will have to register themselves online through a pre-established model approved by the Ministry of Justice.
If the natural or legal persons providing the services described above are not yet registered on the date that this additional provision enters into force, they will have one year to register with the corresponding Trade Register.
In case they are already registered, they must also submit to the Trade Register a statement of compliance with the rules established in Royal Decree-Law 11/2018, of 31 August, within a period of one year.
Legal persons must present an additional statement of who the beneficial owners of the company are. These statements are registered by marginal note and must be updated there are any changes in the beneficial ownership.
Failure to register the natural or legal persons mentioned in the Trade Register, or failure to submit the aforementioned statements, will be considered as a minor infringement, which entails sanctions of private reprimand or a fine of up to 60,000 Euros.
Finally, natural and legal persons providing services to companies must also deposit their annual accounts with the Trade Register in compliance with the provisions of the Corporate Enterprises Act, even if not provided in the applicable regulations. Only professional individuals that are considered as service providers are excluded from the obligation to deposit annual accounts.
Together with the deposit of the annual accounts at the competent Trade Register, they must also register a document containing the following data:
Types of services rendered from among those included in article 2.1.o) of the law.
Territorial scope where it operates, indicating municipalities and provinces.
Provision of services to non-residents in the year in question.
Volume invoiced for the services specified in section a) in the financial year and in the preceding one, if the activity of service providers is not unique and exclusive.
Number of transactions included in the aforementioned article 2.1.o), distinguishing the type or nature of the same.
If applicable, the beneficial owner if there is a modification of the same with respect to the one already recorded in the Register.