Transparency register regulation of the GwG Part III: Notarial practice and transition periods

Notarial practice:

There are also consequences in notarial practice, since a notary is subject to the notarization ban in accordance with Section 10 IX sentence 4 of the GwG if a company cannot provide the necessary information. So far, it was sufficient for the company to be entered in the commercial register, for example. According to Section 20 of the GwG, the obligation to register in the transparency register applies and if this entry is not available at a company that is subject to the obligation to report, the certification must be refused in accordance with Section 10 IX sentence 4 GwG in conjunction with Section 11 Va sentence 1 GwG.

In real estate transactions, notaries, as obliged entities according to Section 2 I No. 10 a) aa) GwG, must check the consistency of the beneficial owners of the companies involved on the basis of documentation of the ownership and control structure. The notary is required to record and retain data in accordance with Section 8 of the GwG. A notarization ban also applies if a foreign company wishes to acquire a property located in Germany and is not entered in the transparency register (Section 10 IX p. 4 in conjunction with Section 20 I p. 2, p. 3 GwG).

Transition periods

In Section 59 VIII of the GwG, however, it is provided that transitional periods will apply to those legal entities that were previously exempt from the obligation to notify the transparency register of Section 20 II of the GwG. So get

  • an AG, SE or KgaA that has not yet been subject to notification by March 31, 2022,
  • a GmbH, cooperative, European cooperative (SCE) or partnership that has not yet been notified by June 30, 2022
  • and all other legal entities not yet obliged to notify by December 31, 2022

Time to fulfill their obligations (Section 59 VIII No. 1-3 GwG). The provisions on fines pursuant to Section 59 IX of the GwG apply to an AG, SE or KGaA affected by the deletion of the fictitious notification until March 31, 2023, a GmbH, cooperative, European cooperative (SCE) or partnership affected by the deletion of the fictitious notification until 6/30/2023 and for all other legal entities affected by the deletion of the notification fiction until December 31, 2023. In addition, no discrepancy reports have to be submitted for these by April 1, 2023 if, according to the version of Section 23a I in conjunction with Section 20 II GwG, which was valid up to and including July 31, 2021, there was no obligation to submit a notification of discrepancy to the transparency register (Section 59 X GwG ) (Goette, DStR 2021, 1551).

Ayten Melikli (Dr. Grund, Räuchle, Besazza-Sulser, Laubis and colleagues, Freiburg im Breisgau)

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