Effective from 21 March 2018, there is an obligation to identify the real holder or ultimate owner of a company, at the time of filing of the annual accounts with the Mercantile Registry in Spain. Order JUS / 319/2018, of March 21, of the Ministry of Justice, includes the new models of presentation of the annual accounts in the Mercantile Registry. These models require the identification of the real owner of the company and were designed to comply with and implement the requirements of European Union Directive 2015/849, however, listed companies may be exempted from this obligation. In particular, the new model requires that the ultimate owner of the company that files the annual accounts and the indirect holders, if any, are identified.
1.- Real owner of the company that files the annual accounts
The real or ultimate owner in the case of companies will be the individual or individuals who ultimately own or control, directly or indirectly, a percentage higher than 25 percent of the capital stock or voting rights of a legal entity, or exercise control, whether directly or indirectly, through agreements or statutory provisions, over the management of the legal entity. ¨Control¨ is understood as having the same meaning as determined by the provisions of article 42 of the Commercial Code.
When there is no natural person who owns or controls, directly or indirectly, a percentage higher than 25 percent of the capital stock or voting rights of the legal entity, or who by other means exercises control, directly or indirectly, of the legal entity, the director or directors shall be deemed to exercise such control. Where the designated director is a legal entity, it will be understood that control is exercised by the natural person appointed by the corporate director (representative director).
The identification of real shareholders or owners of listed companies or of their majority-owned subsidiaries will not be mandatory when they are subject to information obligations that ensure transparency in their real ownership, that is, for example those included in the European Union Stock Market or exchanges with similar regulation.
2.- Indirect real owners
It would be necessary to detail the chain of control through which the indirect real owners have the voting rights in the company that files the annual accounts in a Mercantile Registry in Spain:
(a) It must first identify the dominant legal entity that immediately has a stake in the company or in the company that is making the filings, tracing back to the last real owner.
(b) each legal entity exercising control in the chain of control must be identified by its corporate name, nationality, address and registration data (and the LEI, if applicable).
Corporate and M&A department
CECA MAGÁN ABOGADOS
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