date | theme

21. February 2022 | The Transparency Register for Beneficiaries in Germany from 2022

22. February 2022 | Insight into the Transparency Register: Who gets access to which data? (this contribution)

23. February 2022 | Reporting of inconsistencies in the Transparency Register

24. February 2022 | Transparency register: which fines threaten administrative offences?

The Transparency Register provides access to legally specified data of persons who are economically entitled to legal entities. The transparency register, like the commercial register or the association register, is a public register. In order to access the transparency register, however, one must first register on the website of the transparency register in a two-stage procedure. Finally, the transparency register is also a purely electronic register. Furthermore, the Transparency Register provides access to other public registers. While most of the information in the Transparency Register is accessible to everyone, there is also the possibility in certain cases that the persons registered there may restrict access to the data only. This is especially the case for minors who are registered as beneficial owners in the transparency register. However, if inconsistencies are contained in the transparency register, this leads to a notification and subsequent examination according to legal requirements.

The increased importance of the Transparency Register from 2022 is the result of a reform of the Money Laundering Act (MWG). In mid-2021, the legislator set the increased requirement of the EU Directive 2018/843 of 30. May 2018 into national law. Because the transparency register goes back to an initiative of the EU, with the money laundering and terrorist financing the fight. However, this view only received the priority level granted to it by the Panama Papers published in the media.

We have already described in a first article the obligations associated with the introduction of the Transparency Register. Therefore, we dedicate this contribution to the possibilities and accompanying conditions for access to the transparency register.

Whoever obtains access to the transparency register in which way is of course regulated by law. Therefore, first of all, we look at the legal bases for this. These are largely contained in § 23 GwG. Thus, § 23 (1) GwG lists all circles that are entitled to access the transparency register. In addition, § 23 GwG contains provisions for the use of the data obtained when viewing the transparency register. In § 23 paragraph 2 of the GwG, the legislature supplements possibilities which can be considered as the basis for a restriction of the access to the transparency register. Furthermore, in connection with the provision of an inspection of the transparency register § 23 paragraph 8 GwG is interesting. This is because the legislator describes the circumstances that allow the beneficial owners registered in the register to inspect certain data themselves.

Interesting in this context may also be a look into the recent past. Before the introduction of the legal change to the Transparency Register, which has been in force since 2022, the Transparency Register was not a public register. In fact, before 01.01.2022, only certain circles were allowed unhindered access to the transparency register. And only a few others were able to obtain information from the transparency register to a limited extent if they could prove a legitimate interest in the data stored there. This right belonged, for example, to journalists. However, there has been no possibility for the general public to consult the transparency register.

Incidentally, the responsibility and thus the supervision of the public transparency register lies with the Federal Office of Administration. This is specified in § 25 paragraph 6 GwG. However, the Federal Ministry of Finance has transferred the management of the transparency register to Bundesanzeiger Verlag GmbH by means of loans.

Let’s start our investigations into the transparency register with the question of the data that can be accessed. This is basically about information on persons who are economically entitled to private bodies or associations of persons. In other words, it is primarily those who ultimately benefit economically from these legal entities. The limitation shall apply to those beneficial owners having, directly or indirectly, 25 % of the shares or voting rights in those entities. Other means of control which have a similar effect are also included herein. Thus, these are both shareholders of corporations and partnerships. But also beneficiaries of foundations, board members of cooperatives and associations as well as the beneficial owners of trusts and trust constructs fall under these rules.

For this purpose, the Transparency Register provides access to the following data: