Law 89/2017 of 21^st August set out the transposition to the Portuguese legal system of the Directive 2015/849 of 20^th May, of the European Parliament and European Council, in force since 20^th November 2017.

This Law sets out the obligation of companies to maintain an updated internal registry and the communication to the Central Registry of the Beneficial Owner (Registo Central do Beneficiário Efectivo), that will be managed by the Notary and Registry Institute, of the data of the legal person or persons that, even indirectly or through a third party, detains the ownership or the effective control of those entities.

Its scope of application is quite extensive and involves,  besides the companies, branches that pursue their activity in Portugal, associations, cooperatives, foundations, fiduciary management instruments and external financial branches registered in the Free Zone of Madeira and, in certain conditions, also the fiduciary funds and other collective interest centers without legal personality.

The diplomatic and consular missions and international organisms with public nature are excluded, as so the services and entities of the subsectors of the public administration, the Bank of Portugal and the regulation entities for the social communication, companies with participations admitted to negotiation in the regulatory market, consortiums and complementary groupings of companies and condominiums, under certain circumstances.

For registration purposes, the legal persons identified in article 30 of Law 83/2017, 18^th August, are considered as beneficial owners of the commercial entities, namely:

1. The legal persons that, ultimately, hold the ownership or control, directly or indirectly, of a sufficient percentage of shares, rights of vote or participation of share capital in the corporate body;
2. The legal persons that execute the control by other means over the corporate body;
3. The legal persons that hold administration position, when identifiable in terms of the previous paragraphs or when there are doubts about who are the actual beneficiaries.

The data that should be submitted in the declarations is the following:

• Regarding the holders of social participations that are collective persons: the tax number, the social name, the legal nature, the head office, the activity code, the unique identifier of legal entities, when applicable and their e-mail;
• Regarding the beneficial owners: the complete name, the birth date, the country of birth, the nationality, the complete address, the data of the identification card, the tax number and the e-mail.
• Regarding the reporters: the name, the complete address and the data of the identification card or the professional card, the tax payer number, the quality in which they are acting and the e-mail.

When there are collective interest centers without legal personality, in some situations, such as fiduciary management instruments from the Free Zone of Madeira and other fiduciary funds, there exists a different form of declaration.

A preliminary draft of this Law was submitted to the Data Protection National Committee (CNPD) for analysis, requested by the President of the Committee of Constitutional Matters, Rights, Liberties and Guarantees, with the purpose of conducting a protective evaluation of the personal data. No alterations were made. As the CNPD referred, the access to a detailed personal data, not only about the beneficial owners but also about the reporters, will be allowed. It is also questioned which data the Law requires when it refers to the data of the identification card, as this card identifies the social security number and the national health number.

The access to the data is even more serious, as some of it will be available on a public website. On the other hand, this access will not occur if there is the possibility that the identified person is liable to be exposed to fraud, kidnapping, extortion, violence, intimidation or, in the event that the beneficial owner is a minor or incapable.

Lawyers, solicitors, notaries, certified accountants, administration board of the company, the legal persons that act as fiduciary administrators and the founding members of the corporate bodies have the right to present this declaration.

The non-presentation of this declaration can affect the distribution of profit, signature of contracts, participation in public procurement, negotiation in the regulated market, launch of public offers of distribution, award of European funds or intervention in several businesses. Furthermore, civil and criminal responsibilities can be incurred and the breach can be published in the RCBE website.  The breach shall result in a misdemeanor, punishable with a fine between € 1.000,00 and € 50.000,00.

On 21^st of August 2018 Ordinance nr. 233/2018 was issued, which regulates the RCBE and establishes the forms necessary for the presentation of the declaration, that will be available on the website of the Ministry of Justice. The authentication in the RCBE is available by digital certificate, Digital Key, professional certificates and authentication and certification systems from legitimate entities.

It is mentioned that the first declaration must occur, free of charge, between 1^st January 2019 and 30^th April 2019, for registered entities, and until 30^th June 2019 for non-registered entities. It also states the need for an annual update of the declaration that must be presented each year until 15^th July, jointly with the presentation of the Simplified Business Information (Informação Empresarial Simplificada), which will cease to be used in 2019.

This Ordinance came into force on 1^st October 2018 and the predicted fees are the following:

• Issue of proof of declaration: € 20,00;
• Late submission of the declaration: € 20,00;
• Rectification, modification or revocation of the declaration by mistake of the reporter; € 50,00;
• Electronic assisted fill of the declaration for (in-person) registration at the counter: € 15,00;
• Electronic access to the information in the RCBE (monthly subscription): € 50,00

 We reaffirm that all entities subject to commercial registry must deliver their first declaration between 1^st January 2019 and 30^th April 2019.