New act on registration of beneficial owners

When the new act enters into force, all who conducts business in Norway through a legal entity must map and document their ownership structure in order to identify the physical persons who own or control more than 25%. Such “beneficial owners ” must be recorded in a national public register.

Mandatory registration of ownership

The new rules are introduced in Norway in order to comply with EU legislation requiring establishment of a register of beneficial owners, i.e. a register showing the physical persons ultimately controlling a corporation or other legal entity. The purpose of the new act is to facilitate access to information about beneficial owners for those under duty to report pursuant anti-money laundering regulations, for public authorities and others. The proposed regulations will enable access to the register for the general public.

The Norwegian Act on register of beneficial owners (Nw; reelle rettighetshavere) (2019-03-01-2) has been adopted but has, as per October 2020, still not entered into force. Proposed regulations supplementing the act have been distributed with deadline for comments on 1 October 2020. It is expected that the new act and the relevant regulations could enter into force during 2021.

The new register will be maintained by the Norwegian Enterprise Register (Nw; Brønnøysundregistrene).

Registration duty for all legal entities

The requirements to collect and register information about real/beneficial owners who control more than 25 % applies to all corporations and other legal entities operating or registered in Norway, including Norwegian limited liability companies (Nw; aksjeselskap, AS), public limited liability companies (Nw; allmennaksjeselskap, ASA), companies with limited liability (Nw; selskap med begrenset ansvar, BA), General Partnerships (Nw; ansvarlige selskap, ANS), General Partnerships with shared liability (Nw; ansvarlige selskap med delt ansvar; DA), limited partnerships (Nw: kommandittselskap, KS), Co-operatives (Nw: samvirkeforetak, SA), European companies (Nw: europeiske selskap), jointly owned shipping companies (Nw: partrederi, PRE), housing cooperatives (Nw: borettslag, BRL), house building cooperatives (Nw; boligbyggelag, BBL), foundations (Nw; stiftelser, STI), associations with business activity (Nw; næringsdrivende foreninger) etc.

Registration duty also for managers of foreign trusts etc.

The duty to register beneficial owners does not only apply to Norwegian entities. It also applies for managers of foreign trusts and similar entities operating in Norway. According to the proposed regulations for the act, a foreign entity shall always be deemed to operate in Norway if it “enters into a customer relationship with anybody in Norway subject to reporting duty under anti-money laundering regulations or if it  acquires real property in Norway”. If these provisions are adopted as proposed, without further guidance or clarification, a duty to register in Norway, including the obligation to change incorrectly recorded information and maintain information for ten years, will unfortunately be triggered already when the foreign trust or other entity opens a bank account in Norway, or hires a lawyer or auditor in Norway.

Norwegian branches of foreign businesses (known in Norway as “NUF”) are also under mandatory registration duty. If however a NUF entity is already under duty to record its beneficial owners in another EU country, the registration in the Norwegian register can be limited to information about the name and internet address to the other register.

Exception from the registration duty

The duty to register beneficial owners does not apply to:

  • associations with no business activity or accounting duties
  • bankruptcy estates and estates of deceased individuals
  • securities funds
  • the government, municipalities and regional authorities (Nw; staten, kommuner og fylkeskommuner)
  • government corporations, municipal corporations and health corporations
  • religious entities
  • student associations

Companies whose shares are listed on a stock exchange or other market place will typically only be required to record information about the name and internet address of the market place where its ownership information is announced.  This limited registration duty is not explicitly applicable for wholly owned subsidiaries of such listed companies, despite that they have identical ultimate owners as its listed parent company. This inconsistency will hopefully be amended in the final regulations.

Duty to identify beneficial owners

Beneficial owners are defined in the act as the physical person(s) who ultimately own or control a legal entity. The proposed regulations state further provisions on which individuals who must be identified for different types of entities. For Norwegian corporations, this will be the physical person(s) who, directly or indirectly, own or may vote for more than 25 % of the shares, or who can appoint more than half of the board members, or in any other manner has actual control (e.g. through a shareholders agreement).

It is also required that the mapping of the ownership is documented in a manner enabling tracking of why a certain individual has been identified (or not) as a beneficial owner. The regulations list documents of incorporation, articles of association, shareholders register and corresponding documents as examples of documentation for such purpose.

The information required to be recorded in the register is the name and ID number of the beneficial owners and how they control the legal entity (through ownership, voting rights or other manner) and the basis for such conclusion (direct or indirect stating also names and registration numbers of any intermediate entities/persons). Ownership and voting rights shall be recorded in the following intervals: 25.01-50%, 50.01-75% and 75.01-100%.

Shareholders agreements may regulate the level of control over a corporation. The shareholders agreement as such do not need to be registered (published), however, if it is relevant for determining the influence over the company and identification of beneficial owner, its existence and how it grants control must be registered.

In the event that a legal entity is unable to identify its beneficial owners, it shall instead record information about its managing director and board members. A conclusion that there are no beneficial owners shall be recorded, and the analysis concluding that there are no beneficial owners or that such cannot be identified, shall be justified and documented. There will be a high threshold before entities may conclude that there are no beneficial owners.

It will also be mandatory to update the information in the national register when the entity becomes aware of changes in its ownership structure that implies that there are new beneficial owners. Such changes must be reported within 14 days.

Documentation mapping beneficial owners shall be kept for ten years by those under duty to register its beneficial owners.

Notice of registration and amendments

Legal entities are also obliged to inform its beneficial owners that they will be recorded in the national public register of beneficial owners.

Misstated information in the register shall be corrected. The Norwegian Enterprise Register may direct that entities amend registered data and the proposed deadline for addressing such messages is 14 days.

Sanctions

The new regulations contain a relatively strict sanctions regime where entities unable to identify beneficial owners (or conclude that there are none) within the ascribed time limits may be subject to daily administrative fines. Imposition of fines may be directed against the board of directors, managing director or others representing the entity. Intentional breaches of the provisions may be penalised by fines or up to one year imprisonment.

Access to the register of beneficial owners

The register will be open for access, not just for banks and public authorities, but also for the general public who may search for names (ID numbers will not be shown) of beneficial owners and/or legal entities. It is suggested that no log in or fees will be required to access the data.

Further process

As mentioned above, the regulations crucial to supplement the relatively limited act are not yet adopted, and the proposed provisions thereunder may still be amended before becoming final. Depending on the outcome of the ongoing “hearing” the regulations may be altered from what is described in this article.

It is expected that these new rules will apply both for the approximately 450,000 existing companies and other legal entities in Norway, and for new companies being incorporated in Norway.

Kvale is following the development of these rules closely and is happy to address any questions you may have on the contents and application hereof for your company, association, foundation or other legal entity and, as soon as it is official, we will also be able to advise on when the rules enter into force.