This is the notarial document in which a partner, administrator or representative of a commercial company, in order to prevent money laundering, states and identifies the natural person or persons who own or control, directly or indirectly, a percentage of more than 25 percent of the capital or voting rights of the company or, failing that, identifies the natural person or persons who exercise control over the management or administration of the company.
This is a merely informative and non-binding estimate. This estimate is calculated based on two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
Money laundering is a criminal activity typified by our penal code (Organic Law 10/1995, of November 23, 1995, of the Penal Code) in its articles 301 and following, in which the aim is to prosecute persons who engage in conduct tending to acquire, use, convert or transfer assets knowing that these have their origin in a criminal activity, as well as all those actions aimed at concealing or covering up their illicit origin.
This criminal conduct, included in the typology of crimes against the socioeconomic order, seeks to prosecute all those activities whose lowest common denominator is the will to reintroduce illicit profits derived from criminal activities, thus harming protected legal assets such as the correct circulation or traffic of goods and free competition. What the legislator is trying to do, in short, is to prosecute all those conducts that try to reintroduce into the economy of legal course the fruits of crime, thus discouraging the commission of the same, because as it is known, most of the criminal activities are motivated by a profit motive of the offender.
In our country, the criminalization of this conduct was first introduced through a reform of the Penal Code in 1988, although only limited to financial crime derived from drug trafficking offenses. Subsequently, with the 1995 Penal Code, this offense was extended to assets not only derived from drug trafficking crimes, but from any kind of serious criminal act, given the growing expansion and internationalization of criminal activities at the financial level, as well as international terrorism activities.
It is therefore in the context of the fight against this criminal activity that the governments of various countries, at the end of the 1980s, began to take an interest in creating legal mechanisms to combat this phenomenon, for example through the recommendations of the FATF approved in 1990 (an institution known in English as the "Financial Action Task Force" created by the G7), or within the framework of the European Union, Directive 2005/60/EC of the European Parliament and of the Council of October 26, 2005.
In view of the above, in order to transpose the aforementioned Community instrument, in 2010 the Spanish legislator enacted Law 10/2010, of April 28, 2010, on the prevention of money laundering and terrorist financing (and subsequently its implementing regulations approved by Royal Decree 304/2014, of May 5, 2014), the cornerstone of this matter in the Spanish legal system, which will be the focus of this analysis, the purpose of which is to protect the integrity of the financial system and other sectors of economic activity by establishing obligations for the prevention of money laundering and the financing of terrorism (Article 1 of the aforementioned law).
As mentioned above, the purpose of Law 10/2010 is to prevent the commission of conduct that may be considered as money laundering. For these purposes, the law itself establishes a detail of the activities that will be considered as such, namely:
Likewise, it is necessary to state for the record that under this law, property derived from criminal activity shall be understood as all types of assets whose acquisition or possession originates from a crime, whether tangible or intangible, movable or immovable, tangible or intangible, as well as legal documents or instruments, regardless of their form, evidencing the ownership of such assets or of a right over them.
Thus, the rule under study, from which the need to grant a certificate of manifestations of beneficial ownership will arise, seeks to prosecute all the conducts described above.
In order to combat the set of criminal conducts described in the preceding question, the law has established a list of persons or entities, referred to as regulated entities, to which a series of obligations have been imposed, which will be detailed later on, all of which are aimed at combating money laundering.
Thus, in accordance with Article 2.1 of Law 10/2010, the obligated parties, and therefore the obligations of the regulation will be applicable to, among others, credit institutions, insurance companies authorized to operate in the life insurance business and insurance brokers, investment services companies, collective investment institution management companies, pension fund management companies, venture capital entity management companies and venture capital companies whose management is not entrusted to a management company, mutual guarantee companies, payment institutions and electronic money institutions, persons professionally engaged in currency exchange activities, postal services with respect to money remittance or transfer activities, persons professionally engaged in intermediation in the granting of loans or credits, real estate developers and those professionally engaged in agency, commission or intermediation activities in the sale and purchase of real estate, account auditors, external accountants or tax advisors, notaries and property, mercantile and movable property registrars, etc.
As can be seen, a large number of economic and professional sectors are obliged under the umbrella of Law 10/2010, so that any company wishing to operate with them (for example, opening a simple current account in a financial institution, or granting any kind of public instrument before a notary) will need to have a record of manifestations of beneficial ownership, in order to comply with the obligations of the aforementioned rule, whose compliance must ensure the obligors indicated above.
Law 10/2010, on the prevention of money laundering, imposes a series of obligations, known as due diligence, which can be classified into two categories: normal measures and enhanced measures, on the obliged parties indicated in the previous question.
As far as the normal measures are concerned, there will be three main ones, which will be described below:
First of all, in accordance with Article 3 of Law 10/2010, on the prevention of money laundering, regulated entities are obliged to identify any natural or legal person who intends to establish business relations or intervene in any transaction.
Thus, under no circumstances may regulated entities maintain business relations or carry out transactions with individuals or legal entities that have not been duly identified, and in particular the opening, contracting or maintenance of accounts, passbooks, assets or other numbered, encrypted, anonymous or fictitious name instruments is prohibited.
This formal identification shall be made by means of reliable documents (e.g., National Identity Card for individuals, or certified copies of articles of incorporation in the case of companies), and Article 6 of the aforementioned implementing regulations shall be consulted to determine which documents shall be considered valid for the purposes of this formal identification.
Secondly, as regards the identification of the beneficial owner (article 4 of Law 10/2010, on the prevention of money laundering and also article 8 of its implementing regulations), a specific question will be devoted to it below, since this is the raison d'être of the act of manifestations of beneficial ownership, which is the subject of analysis in these questions and answers. However, by way of example, it can be understood as the need to identify the individuals on whose behalf the business relationship is intended to be established, as well as those individuals who hold a significant share of the capital of those companies on whose behalf the economic relationships in question are intended to be entered into.
Likewise, in this area, the obliged parties will be obliged to determine the ownership and control structure of the legal entities with which they maintain business relations, which in practice, for example in the traffic with financial entities, implies in many occasions the need to draw up and sign an organization chart, by the administrator of the same, of the composition of the shareholding structure of the company in question and of the group of companies to which, if any, it belongs.
Ultimately, the law compels obliged parties to determine the purpose and nature of the intended business relationship (Article 5 of Law 10/2010, on the prevention of money laundering), i.e., they are obliged to know the nature of the professional or business activity of the persons with whom they contract, as well as to reasonably verify the veracity of such information. Likewise, the regulation obliges them to continuously monitor this business relationship (Article 6 of Law 10/2010, on the prevention of money laundering), all of this aimed at detecting possible deviations between the declared activity and the usual operations developed, interpreting such inconsistency as a possible alarm signal.
In addition, in certain special cases, the law requires the application of harsher or more restrictive measures, through the deployment of the aforementioned enhanced diligence measures, which will be applicable in business relationships and non-face-to-face transactions, in cross-border correspondent banking transactions and when dealing with persons of public responsibility (for more details on these measures, please refer to articles 11 to 16 of Law 10/2010, on the prevention of money laundering).
Finally, it is necessary to point out that Law 10/2010, on the prevention of money laundering, in order to ensure compliance with these obligations, establishes a penalty regime (see Articles 50 to 62 of the same) which details a list of offenses that may be committed (such as not formally identifying the parties involved in a business relationship, or not identifying the real owner), In the most serious cases, fines of up to one million five hundred thousand euros may be imposed or administrative authorizations to operate in regulated markets may be revoked when this is necessary due to the nature of the activity.
As mentioned above, one of the obligations imposed on regulated entities by Law 10/2010, on the prevention of money laundering, is the identification of the beneficial owner, which implies that they must adopt the necessary measures to verify his identity prior to the establishment of business relationships or the execution of any transactions.
For the purposes of the aforementioned rule, by virtue of the provisions of Article 4 thereof and Article 8 of the implementing regulations, as regards legal entities, the term beneficial owner shall be understood to mean the real owner:
As indicated in the preceding questions, all obliged parties (including, for example, financial institutions, insurance companies, asset management companies, real estate companies and notaries and registrars) are indeed obliged to identify the beneficial owner in the terms set forth in the previous question.
Therefore, any company that wishes to carry out an economic or commercial activity and needs to establish relations with financial entities to obtain current accounts or financing, to carry out real estate business, to invest its assets, or to grant any kind of deed (such as a change of administrators, the granting of a power of attorney, the notarization of corporate agreements, etc.) will need to identify its real owners before all of them.
To facilitate this task, the legal system has provided for the act of manifestations of beneficial ownership, by virtue of which the administrator or an attorney-in-fact of the company appears before a notary of his choice and files an act in which he states which person or persons are to be considered as beneficial owners for the purposes of Law 10/2010, on the prevention of money laundering.
The reality is that nowhere in the law or its implementing regulations is it established that it is mandatory to have this record. However, notarial practice indicates that this is highly recommended for two main reasons:
The obligation to identify the beneficial owner will be a generalized requirement. However, in certain cases, it will be possible to apply simplified due diligence measures (Articles 9 and 10 of Law 10/2010, on the prevention of money laundering), which opens the door to, in accordance with Article 15 of the implementing regulation, not being necessary to identify the beneficial owner for the following entities:
Likewise, it is necessary to state for the record that, in accordance with Article 9.6 of the Regulation implementing Law 10/2010, on the prevention of money laundering, in order to comply with the obligation of identification and verification of the identity of the beneficial owner, the obligated parties may access the database of beneficial ownership of the General Council of Notaries, subject to the execution of the corresponding formalization agreement.
Thus, by means of the data generated by the Single Notarial Computerized Index, the Notaries communicate to it all the instruments and minutes in which the beneficial ownership of a company is evidenced, for the purpose of integrating these data in the aforementioned database of beneficial ownership to which the obligated parties may access and consult the same in order to comply with the obligations imposed on them by the law.
Finally, it is also necessary to take into account that in the notarial field there is another body linked to the prevention of money laundering, called the Centralized Prevention Body, also under the General Council of Notaries, and regulated by Order EHA/2963/2005, which will analyze the transactions authorized by the Notaries and communicated through the Single Index, In the event of detecting indications or certainties about possible operations constituting money laundering, the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences, which is an independent body attached to the Ministry of Economy whose mission is to develop a preventive policy against money laundering, is notified.
In order to request a title deed, it is only necessary to contact the notary's office (by calling the contact telephone number of the notary's office or at the e-mail address mercantil@jesusbenavides.es) and make an appointment on the day and time that is most convenient for the interested parties.
On the agreed date and time, the interested parties must simply come to the notary's office with the necessary documentation (see section on necessary documentation) to sign the corresponding deed, which will be drawn up on the basis of the minimum legal content required and the forecasts and needs of the clients in question.
Only the administrator or representative of the company that is signing the minutes before the Notary must be present at the signing of the minutes, and it is not necessary for the person who holds the actual ownership of the company to attend.
On the same day of the signature, after a few minutes, in the same notary's office I will be given an authentic copy of the deed of manifestations of real ownership that has just been authorized, so that with it I can carry out all the necessary procedures.
It is enough that the person who represents the company goes to the notary's office with his ID card. In the event that said person is a foreigner, he/she must present to the notary his/her original and valid passport. In addition, the NIE must be presented together with the mentioned passport.
It is essential that the representative of the company presents before the notary the authentic copy of the deed where it appears his appointment in the above mentioned company and his faculties (e.g. the notarial deed where he is named administrator of the company). However, from the notary's office we can access telematically to the Mercantile Registry where the company is registered to verify that such representation is real and in force at the moment of the signature.
The relevant documentation relating to the company in question must be presented to the notary to corroborate the distribution of the current share capital among the different partners. For this purpose, a certified true copy of the company's articles of incorporation must be provided, as well as any subsequent deed of amendment (such as, for example, an increase or reduction of capital, a purchase or sale of shares, a merger, spin-off or any other structural modification of the company).
It should be clarified that, when such declaration is made before a notary of the partners holding a percentage greater than 25% of the capital stock of the company, they do not have to be present. It is sufficient that the representative or administrator of the company identifies them correctly by providing the name, surname, National Identity Card number, place of residence and date of birth of each partner who holds the condition of real holder, that is to say, holds more than 25% of the capital of the company.
