S.L. 16.17 Art. 10Access to information in the Register of Beneficial Owners. S.L. 373.01. S.L. 373.01. Members of the public. 16 [S.L. Special cases involving serious risks. 18 [S.L. Decisions refusing access to information. Online requests for access. Sharing of Information. Statistics.

(1) The information on the beneficial owners of an association held by the Registrar for Legal Persons in the Register of

Beneficial Owners shall, subject to the provisions of these regulations, be accessible to:

(a) national competent authorities being public authorities with designated responsibilities for combating money laundering or terrorist financing, or that have the function of investigating or prosecuting money laundering, associated predicate offences and terrorist financing, or of tracing, seizing, freezing and confiscating criminal assets, the Financial Intelligence Analysis Unit and national tax authorities, supervisors of subject persons and any other national competent authority within the meaning assigned to it under the Prevention of Money Laundering and Funding of

Terrorism Regulations not already covered above, for the purposes of fulfilling their statutory functions, in a timely manner without any restriction and without alerting the association or the beneficial owners concerned; and

(b) subject persons in terms of the Prevention of Money Laundering and Funding of Terrorism Regulations for the purpose of carrying out customer due diligence in accordance with the said regulations with reference to such association, which access shall be granted in a timely manner on a written request.

(2) Upon a written request to the Registrar for Legal

Persons, any member of the general public and any organisation, other than those referred to in sub-regulation (1), may be provided with the following information held in the Register of Beneficial Owners with reference to a specified association:

(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 extent and nature of the beneficial interest, of the beneficial owners of the association and this shall be granted in a timely manner. Any such person or organisation shall not be granted access to any other information or documents relating to the beneficial owners of the association which may be in the possession of the Registrar for Legal Persons. 16.17 (REGISTER OF BENEFICIAL OWNERS – ASSOCIATIONS)

(3) The subject persons mentioned in sub-regulation (1)(b) shall, together with the written request, submit to the Registrar for Legal Persons:

(a) identification details and other information supported by documents, certified as authentic, showing that the person requesting access to the Register is a subject person, such as a licence or a professional warrant or other evidence of the function of the subject person;

(b) a declaration that the purpose of the enquiry relates and will contribute to the prevention, detection and combating of money laundering or the associated predicate offences or the financing of terrorism;

(c) documentation, certified as authentic, of the legal relationship with the association or the beneficial owners, such as an engagement or instruction letter engaging the subject person or a power of attorney, if any, and failing which a declaration explaining why the subject person’s role is not based on such a legal relationship; and

(d) any other document which the Registrar for Legal Persons may deem necessary.

(4) The members of the general public mentioned in sub-regulation (2) shall, together with a written request, submit to the Registrar for Legal Persons:

(a) identification details and other information supported by documents, certified as authentic, identifying the person requesting information from the Register of Beneficial Owners;

(b) 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 associated predicate offences or the financing of terrorism and a general description of how access to the information will so contribute;

(c) any other document which the Registrar for Legal Persons may deem necessary:

Provided that for this purpose, the Registrar for Legal Persons may publish guidelines setting out the documentation required to support such a request to information held in the Register of Beneficial Owners as well as the procedure for making such requests and any other applicable conditions. (REGISTER OF BENEFICIAL OWNERS – ASSOCIATIONS)

(5) To prevent the abuse of the information contained in the Register of Beneficial Owners and to balance out the rights of beneficial owners, the Registrar may make:

(a) information relating to the applicants mentioned in sub-regulations (1)(b) and (2);

(b) the legal basis for their request; and

(c) the reasons for the decision taken by the Registrar for Legal Persons to grant access to information, available to the association and, or the relevant beneficial owner to enable such association or beneficial owner to protect their own interests.

(6) Access to or provision of information held in the Register of Beneficial Owners shall be subject to the following conditions:

(a) the competent authorities referred to in sub-regulation (1)(a) shall be granted access without restriction to the requested information held in the Register of Beneficial Owners on the assumption that such consultation is related to such competent authority’s statutory functions and subject to the relevant competent authority’s obligations under applicable data protection laws and regulations;

(b) subject persons referred to in sub-regulation (1)(b) shall be granted access to the requested information held in the Register of Beneficial Owners upon written request to the Registrar for Legal Persons on the basis of the declarations made and documents submitted as stated in sub-regulation (3) being satisfactory and subject to the relevant subject person’s obligations under applicable data protection laws and regulations and laws relating to professional secrecy; and

(c) the persons or organisations forming part of the general public referred to in sub-regulation (2) shall be granted the information requested on satisfactory compliance with sub-regulation (4).

Provided that any such request and any permission granted shall be limited to the specific association and the specific beneficial owner or owners referred to in the request.

(7) (a) Except in the case contemplated in sub-regulation

(1)(a) or in the case of credit or financial institutions in the course of carrying out their duties under laws for the prevention of money laundering and terrorist financing or of subject persons that are public officials, access to information on a beneficial owner of an association 16.17 (REGISTER OF BENEFICIAL OWNERS – ASSOCIATIONS)

may be denied, in full or in part where, in exceptional circumstances to be justified by means of documentary evidence and to be determined on a case by case basis, following a detailed evaluation of the exceptional nature of the circumstances, access to such beneficial ownership information 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.

(b) Every request for information which raises the above risks based on information provided by the association when complying with these regulations shall be examined by the Registrar for Legal Persons on a case-by-case basis prior to his determination on whether to grant access to information or otherwise. Such denial of access by the Registrar for Legal Persons shall only be decided upon a detailed evaluation of the exceptional nature of the circumstances.

(8) (a) The Registrar for Legal Persons shall be bound to notify the association to which sub-regulation (7) applies, in writing, of any application for information relating to the applicants mentioned in sub-regulations (1)(b), and (2) and the legal basis for the request.

(b) The Registrar for Legal Persons shall grant the association at least ten (10) working days to make any submissions in writing to the Registrar for Legal Persons. The association shall communicate the information to any relevant beneficial owner for any comments which such beneficial owner may wish to raise in such time and manner as will enable the association to respond as above stated. The Registrar for Legal Persons shall process the response received in a timely manner.

(c) Should the Registrar for Legal Persons decide to grant access, he shall provide the reasons for his decision to the association in writing prior to notifying such decision to the applicant and the association shall have a right to contest such decision by applying for judicial review of such decision within twenty (20) working days from receipt thereof, and this without involving the applicant. The sworn application for judicial review shall be notified to the Registrar for Legal Persons who shall have twenty (20) working days to respond to such application:

Provided that the Registrar for Legal Persons shall not grant access until the conclusion of the review proceedings and in such case only under the conditions as may be established by the Court.

(9) (a) The Registrar for Legal Persons shall be bound to notify in writing the applicant, with a copy to the association, of any decisions that he may take refusing a written request made to him on the basis of sub-regulation (7), providing the reasons for his decision. The Registrar for Legal Persons shall do so in a timely manner. (REGISTER OF BENEFICIAL OWNERS – ASSOCIATIONS)

(b) Any applicant who feels aggrieved by the decision of the Registrar for Legal Persons shall have a right to apply for judicial review of such decision, within twenty (20) working days from receipt thereof, which application for judicial review shall also be notified to the Registrar for Legal Persons who shall have twenty

(20) working days to respond to such application. The sworn application shall also be notified to the association, which may consult the relevant beneficial owner and who shall be entitled to participate in the proceedings with the association.

(10) A sworn application for judicial review from the decision of the Registrar for Legal Persons in terms of sub-regulation (8) and

(9) shall be made to the Civil Court, First Hall, and this, with a right of appeal, within twenty (20) working days from the date on which the decision of the Civil Court, First Hall is given, to the Court of Appeal in its inferior jurisdiction. An appeal may be made on any point of law and, or of fact by means of a sworn application.

(11) Such applications for judicial review and any appeals shall be filed in the registry of the relevant court and, if so ordered by the court, the proceedings shall be held to protect the in camera confidentiality of the beneficial owners.

(12) The Registrar for Legal Persons shall be entitled to require solely online requests to access information in the Register of Beneficial Owners, as established in guidelines which he may issue for this purpose.

(13) Notwithstanding the provisions of any other law, including the laws on professional secrecy and data protection, the competent authorities referred to in sub-regulation (1)(a) and the Financial Intelligence Analysis Unit are permitted, in pursuance of their functions in accordance with applicable law, to provide the information about the beneficial owners to competent authorities and to Financial Intelligence Units of other Member States of the European Union and to do so in a timely manner and free of charge.

(14) The Registrar for Legal Persons shall publish annual statistical data on the number of refusals issued under sub-regulation

(7) and the reasons stated thereof and report the data to the European Commission.