On the first anniversary of Law no. 89/2017, of 21 August 20171, and with a delay of approximately 9 months in relation to the deadline set out in article 23 of said Law, the Ministerial Order no. 233/2018, of 21 August 2018 (the «Ministerial Order»), of the Ministry of Finance and the Ministry of Justice, provided for in Annex I of said Law (the «LFCRBO») was published, regulating the legal framework of the Central Register of Beneficial Owners (the "CRBO"). The Ministerial Order will enter into force on 1 October 2018.
WHAT WAS TO BE DEFINED UNDER THE MINISTERIAL ORDER?
Besides other aspects that prevented the entities covered by the LFCRBO (the «Reporting Entities») from complying with the new reporting obligations imposed upon them, the Ministerial Order was expected, in particular, to define (i) the form and deadline of the reporting obligations to the central registry, as well as (ii) the terms in which the circumstances indicating the capacity as beneficial owner, listed in article 30 of Law no. 83/2017, of 18 August2 2017, should be considered relevant within the framework of the CRBO.
1.1. THE FORM OF COMPLIANCE WITH THE DECLARATIVE OBLIGATION - THE FORM FOR THE CRBO DECLARATION
Article 11 of LFCRBO states that the beneficial owner declaration must be filled in through (i) completing and submitting an electronic form (the «Form») or, alternatively, (ii) at a registration service, through electronic assisted filing, together with any application for the commercial registration of any fact or the inscription of any fact in the Central File of Legal Entities ("Ficheiro Central de Pessoas Coletivas").
Unlike what was expected, the Ministerial Order failed to approve the template of the Form, rather establishing that it will be made available on the website of the Ministry of Justice after the enactment of an order by the President of the Board of Directors of the Institute of Registries and Notary Affairs (the «IRN»). To date, neither the form template, nor the contents of the order of the President of the IRN Board of Directors on this matter are yet available, and at this stage it is not possible to anticipate the date on which they will actually be disclosed.
In turn, the assisted filing of the beneficial owner declaration will be available through prior appointment at certain registration services, still to be defined by resolution of the IRN Board of Directors, and should be made (i) at the registry services when applying for a commercial registration act, (ii) under the procedure for immediate constitution of a legal person or of a permanent representation, or (iii) upon filing of the application for inscription in the Central File of Legal Entities.
1.2. THE CONTENTS OF THE STATEMENT - THE CIRCUMSTANCES INDICATING THE CAPACITY AS BENEFICIAL OWNER
A central issue within the scope of the LFCRBO is the definition of the criteria on the basis of which the capacity as beneficial owner for the purposes of the CRBO will be determined.
While Law no. 89/2017 failed to clarify what should be considered as a beneficial owner or effective control over the Reporting Entities, referring such clarifications to the Ministerial Order, this, in turn, confines itself to...