S.L. 16.18 Art. 10Access to information in the Register of Beneficial Owners. S.L. 373.01. S.L. 373.01. Members of the public. S.L. 386.19. L.N. 24 of 2020. Persons with a legitimate interest. Special cases involving serious risks. Decisions refusing access to information. Online requests for access. Sharing of Infor

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

Beneficial Owners shall, subject to the provisions of these regulations, be accessible to: (REGISTER OF BENEFICIAL OWNERS – FOUNDATIONS)

(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 foundation 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 foundation, which access shall be granted in a timely manner on a written request.

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

(a) with reference to transparent foundations or a specific beneficiary thereof whether a natural person or a legal organisation; and

(b) with reference to a private foundation which:

(i) holds or owns a controlling interest in any corporate or other legal entity not registered in Malta, through direct or indirect ownership, including through bearer shareholdings, or through control via other means, other than:

(aa) any corporate or other legal entities referred to in the Companies Act (Register of Beneficial Owners) Regulations or the Civil Code (Second Schedule) (Register of Beneficial Owners - Associations) Regulations, 2020; and

(bb) any corporate or other legal entity incorporated within any other Member State subject to legal obligations similar to those in these regulations; or

(ii) has fiduciary duties towards a named beneficiary, or a class of beneficiaries, which is a legal organisation and not a natural person, and only in relation to such beneficiary which is a legal organisation, 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 foundation:

(aa) the name;

(bb) the month and year of birth or the date of establishment or registration in case of a legal organisation;

(cc) the nationality or the state of establishment or registration in case of a legal organisation;

(dd) the country of residence; and

(ee) the nature and extent of the beneficial interest, of the beneficial owners of the foundation 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 foundation which may be in the possession of the Registrar for Legal Persons.

(3) In the case of private foundations, other than those expressly referred to in sub-regulation (2), established for the private interest or benefit of a named person or a class of persons who are natural persons, any person who, in a written request, satisfactorily demonstrates and justifies, to the Registrar for Legal Persons, a legitimate interest specifically related to the prevention of money laundering and the financing of terrorism may be provided with the following information held in the Register of Beneficial Owners with reference to a specified private foundation:

(a) the name;

(b) the month and year of birth or in case of a legal organisation the date of establishment or registration;

(c) the nationality or in case of a legal organisation the state of establishment or registration;

(d) the country of residence; and

(e) the nature and extent of the beneficial interest, of the beneficial owners of the foundation and this shall be granted in a timely manner. Any such person shall not be granted access to any other information or documents relating to the beneficial owners of the (REGISTER OF BENEFICIAL OWNERS – FOUNDATIONS)

foundation which may be in the possession of the Registrar for Legal Persons.

(4) 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 holder 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 foundation 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.

(5) 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; and

(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.

(6) The persons or organisations mentioned in sub-regulation (3) 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) a statement on the basis of the legitimate interest underlying the request and associated supporting documentation as may be reasonably required by the Registrar for Legal Persons to prima facie ascertain that the person or organisation has a legitimate interest in consulting the Register of Beneficial Owners with reference to the particular foundation or beneficial owners thereof; and

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

For the avoidance of doubt, it shall be incumbent on the person making the request to prove his legitimate interest to the Registrar for Legal Persons.

The Registrar for Legal Persons may publish guidelines setting out the documentation required to support such a request for information held in the Register of Beneficial Owners and the evidence of any stated legitimate interest as well as the procedure for making such requests and any other applicable conditions.

(7) 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), (2) and (3);

(b) the legal basis for their request; and (REGISTER OF BENEFICIAL OWNERS – FOUNDATIONS)

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

(8) 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 (4) being satisfactory and subject to the relevant subject person’s obligations under applicable data protection laws and regulations and laws relating to professional secrecy;

(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 (5); and

(d) the persons or organisations referred to in sub-regulation (3) shall be granted the information requested on satisfactory compliance with sub-regulation (6).

Any such request and any permission granted shall be limited to the specific foundation and the specific beneficial owner or owners referred to in the request.

(9) (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 a foundation 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 foundation 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.

(10) (a) The Registrar for Legal Persons shall be bound to notify the foundation to which sub-regulation (9) applies, in writing, of any application for information relating to the applicants mentioned in sub-regulations (1)(b), (2) and (3) and the legal basis for the request.

(b) The Registrar for Legal Persons shall grant the foundation at least ten (10) working days to make any submissions in writing to the Registrar for Legal Persons. The foundation 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 foundation 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 foundation in writing prior to notifying such decision to the applicant and the foundation 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.

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

(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 (REGISTER OF BENEFICIAL OWNERS – FOUNDATIONS)

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 foundation, which may consult the relevant beneficial owner, who shall be entitled to participate in the proceedings with the foundation.

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

(11) shall be made to Civil Court, First Hall, with a right of appeal, within twenty (20) working days from the date on which the decision of 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.

(13) 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.

(14) 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.

(15) 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 the applicable law, to provide the information about the beneficial owners to competent authorities and to Financial Intelligence Units of other Member States and to do so in a timely manner and free of charge.

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

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

(17) (a) For the purposes of regulation 10(3):

(i) a legitimate interest to be granted access to information on the beneficial owners of a foundation shall be satisfactorily demonstrated if the person requesting such access can prove that the interest specifically and solely relates to and will contribute to the prevention, detection and combating of money laundering or the associated predicate offences or the financing of terrorism and shall be justified on the basis of previous activities and a proven track record of actions in that field, by means of relevant documentary evidence;

(ii) the existence or otherwise of a legitimate interest shall be conclusively determined, on a case by case basis, by the Registrar for Legal Persons and for such purpose the Registrar for Legal Persons may request any information he deems necessary for the determination of such legitimate interest and, or seek guidance from or consult with any person or authority as may be deemed necessary.

(b) The Registrar for Legal Persons may request from the foundation any information he considers relevant in order to assess and process the request made for access to beneficial owner information and while doing so may share the information referred to in regulation 10(7)(a) and (b):

Provided that in determining whether the applicant has such legitimate interest, the Registrar for Legal Persons may also request any information and, or any relevant documentary evidence he deems necessary from any person or authority.

(c) Unless prohibited by these regulations or applicable law, in the event that the Registrar for Legal Persons considers that there exists a legitimate interest to be granted access to beneficial owner information, he shall notify the foundation of his conclusions and the reasons for his decision and shall grant the foundation, which shall provide the information to any relevant beneficial owner and receive any comments such beneficial owner may wish to submit, at least ten (10) working days to present any submissions to him in writing which the foundation and, or the beneficial owner may wish to make.

(d) After consideration of such submissions, if any, the Registrar for Legal Persons shall notify the applicant and the foundation of his final decision.

(18) (a) An applicant who is aggrieved by the decision of the Registrar for Legal Persons denying access to the beneficial ownership information on the basis of the absence of legitimate interest may, by sworn application apply to Civil Court, First Hall for judicial review of the decision of the Registrar for Legal Persons, with an appeal to the Court of Appeal in its inferior jurisdiction.

(b) The provisions of regulation 10(11) to (13) shall apply to such applications for judicial review and mutatis mutandis relative appeals.