The new Bulgarian Measures Against Money Laundering Act (MAMLA) was promulgated in March 2018. The law sets up new requirements for 35 categories of persons listed in Art. 4 of MAMLA. The measures for the prevention of the use of the financial system for the purposes of money laundering are binding for the financial institutions, the currency exchange offices, the leasing undertakings, the investment intermediaries, the statutory auditors, persons that, by way of their business, provide accounting services and/or tax consultancy services, persons that, by way of their business, provide legal advices, persons that, by way of their business, provide a registered office, correspondence address, business accommodation and/or other related services for the purposes of the registration and/or operation of a legal person or other legal entity or services comprising the formation, registration, organisation of the operation and/or management of a merchant or of another legal person, or other legal entity, the persons engaged, by way of their persons, in real estate agency, the wholesalers, the non-profit legal persons, etc.
The explicit reference to one or more of the activities referred to in Art. 4 of MAMLA in the objects on the record of a legal person or other legal entity in the relevant public register, where the said activity is not subject to authorisation, licensing or registration, shall be reason to believe that the said activity is carried out by way of its business and that the person falls within the scope of the persons referred to in Art. 4 of MAMLA and the said person is obliged to apply the measures under MAMLA until the said person proves by means of official, accounting and other documents that the said activity is not carried out by way of its business or was carried out on an occasional basis.
Article 101 of MAMLA envisages that all persons obliged under Art. 4 of the Act shall adopt internal rules on money laundering control and prevention. The persons shall adopt these rules within four months from its registration. Where a specified activity is subject to licensing, authorisation or registration, the rules shall be adopted within four months from the issuing of the licence or authorisation or from the recording in the relevant register.
The persons, for whom the obligation to apply measures against money laundering arose before the entry into force of MAMLA, shall bring the its internal rules into conformity with the requirements of Art. 101 not later than 12 May 2019.
The persons, for whom an obligation to apply measures against money laundering arises under MAMLA, shall also adopt internal rules not later than 12 May 2019.
The internal rules shall be sent to the Director of the Financial Intelligence Directorate of the State Agency for National Security for endorsement within 14 days from the adoption of the said rules.
The legal persons and other legal entities incorporated within the territory of the Republic of Bulgaria are obliged to obtain, hold and provide, in the cases specified by law, adequate, accurate and current information on the natural persons who are the beneficial owners thereof, including the details of the beneficial interests held by the said natural persons. This information shall be also entered on the records of the legal persons and other legal entities in the Commercial Register, in the Register of Non-Profit Legal Persons and in the BULSTAT Register. The data on the beneficial owners shall be entered unless entered on another ground on the cases or records of the legal persons or other entities in the relevant register as natural persons who are sole owners or holders of an ownership interest of at least 25 per cent. Where the beneficial owners are natural persons other than those entered under previous sentence and where the said owners fall within the scope of § 2 of the Supplementary Provisions of MAMLA on a ground other than the direct ownership of an ownership interest, the data on the said owners shall be entered in the relevant register.
The persons, for whom an obligation to submit a declaration under Art. 63, para. 4 of MAMLA for its beneficial owners applies, shall declare the said data for recording not later than 31 May 2019.
The non-profit legal persons, which effected a re-registration until the 31st day of January 2019, shall declare the data for recording not later than 31 May 2019. The non-profit legal persons, which effected a re-registration after the 31st day of January 2019, shall declare the data for recording within four months after the effecting of the re-registration.
By virtue of MAMLA “beneficial owner” means any natural person or persons who ultimately owns or controls a legal person or other legal entity, and/or any natural person or natural persons on whose behalf and/or for whose account an operation, transaction or activity is being conducted and who complies with at least one of the following conditions:
- In the case of corporate legal persons and other legal entities, the beneficial owner is the person who directly or indirectly owns a sufficient percentage of the shares, ownership interest or voting rights in that legal person or other legal entity, including through bearer shareholdings, or through control via other means, with the exception of the cases of a company listed on a regulated market that is subject to disclosure requirements consistent with European Union law or subject to equivalent international standards which ensure adequate transparency of ownership information.
A shareholding or an ownership interest of at least 25 per cent in a legal person or other legal entity held by a natural person or persons shall be an indication of direct ownership.
A shareholding or an ownership interest of at least 25 per cent in a legal person or other legal entity held by a legal person or other legal entity which is under the control of one and the same natural person or natural persons or by multiple legal persons and/or legal entities which are ultimately under the control of one and the same natural person/persons, shall be an indication of indirect ownership.
- In the case of trusts, including trusts, escrow funds and other similar foreign legal entities incorporated and existing under the law of the jurisdictions providing for such forms of trusts, the beneficial owner shall be:
(a) the settlor;
(b) the trustee;
(c) the protector, if any;
(d) the beneficiary or the class of beneficiaries, or
(e) the person in whose main interest the trust is set up or operates, where the individual benefiting from the said trust has yet to be determined;
(f) any other natural person exercising ultimate control over the trust by means of direct or indirect ownership or by other means.
- In the case of foundations and legal arrangements similar to trusts, the natural person or persons holding equivalent or similar positions to those referred to in Item 2 above.
The natural person or persons who are nominee directors, secretaries, shareholders or owners of the capital of a legal person or other legal entity shall not be a beneficial owner if another beneficial owner is identified.
According to MAMLA “control” means the control within the meaning given by § 1c of the Supplementary Provisions of the Commerce Act, as well as any opportunity which, without being an indication of direct or indirect ownership, confers the possibility of exercising decisive influence on a legal a person or other legal entity in the decision-making process for determining the composition of the bodies responsible for the management and supervision, the transformation of the legal person, the cessation of the activity thereof and other matters essential for the activity thereof.
Exercising ultimate effective control over a legal person or other legal entity by means of exercising rights through third parties conferred, inter alia, by virtue of authorisation, contract or another type of transaction, as well as through other legal arrangements conferring the possibility of exercising decisive influence through third parties, shall be an indication of “indirect control”.
Where, after having exhausted all possible means, no beneficial owner is identified or if there is any doubt that the person or persons identified is the beneficial owner, the natural person who holds the position of senior managing official shall be regarded as “beneficial owner”.
For more information or legal assistance in conjunction with MAMLA please do not hesitate to contact us by e-mail: email@example.com or call us on: +359 2 851 72 59.