The Central Register of the Effective Beneficiary (RCBE) consists of a database with accurate and up-to-date information about the persons who, indirectly or through a third party, have ownership or effective control of established entities in Portugal.
Subject to the RCBE are: (a) associations, cooperatives, foundations, civil and commercial companies, which conduct activities or practice a legal act or business in Portugal, and require a fiscal identification number (NIF); (b) representation of international legal persons or of foreign law carrying out an activity in Portugal.
It is the duty of the entities subject to the RCBE to declare precise and current information about their beneficial owners.
The declaration of the beneficial owner must contain relevant information on: (a) the entity subject to the RCBE; (b) in the case of commercial companies, the identification of the owners of the share capital, with a breakdown of their respective shareholdings; (c) the identification of managers, administrators or those who exercise the management or administration of the entity subject to the RCBE; (d) the beneficial owners; (e) the declarant.
The declarative obligation is fulfilled by completing and submitting an electronic form. Alternatively, the declaration of the beneficial owner can be made in a registry service, by electronic filing, together with the request for commercial registration or registration of any fact in the Central File of Legal Persons.
The declaration is only valid when it respects the entity subject to the RCBE and contains all the mandatory data.
Completion of the procedure must be communicated by electronic mail to the declarant and to the entity. Thus, in conclusion:
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With the entry into force of the RCBE, commercial companies must keep an up-to-date register of the identification elements (i) of their respective partners – indicating their respective shareholdings –, (ii) the natural persons directly or indirectly holding (iii), in any way, effective control of the company.
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In the case of foreigners who are not resident in a Member State of the European Union, the data of the respective fiscal representatives registered with the Portuguese tax authority must also be included in this “internal” register.
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The duties imposed by the RCBE are: (i) to submit the declaration of the beneficial owner, which must contain sufficient, accurate and up-to-date information about its beneficial owners, as well as all the circumstances indicating such quality and information on the economic interest held in them; (ii) maintain an up-to-date internal record of the members’ identification details (with a breakdown of the respective shareholdings) and of the natural persons holding, albeit indirectly or through a third party, ownership of the shareholdings or effective control of the company.
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The declaration of the beneficial owner shall be delivered: (a) in entities constituted before the entry of the RCBE: by completing and submitting an electronic form or, alternatively, in a registration service together with an application for commercial registration or registration of fact in the Central File of Corporate Persons (FCPC); (b) in entities constituted after the entry of the RCBE: in the documents of incorporation of the entity, being submitted in the commercial register.
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For entities subject to commercial registration already in place, the first beneficial owner declaration must be made between January 1 and April 30, 2019.
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For entities constituted from October 1, 2018, the first declaration of beneficial owner must be made within 30 days: after the constitution of the entity subject to commercial registration; after the definitive registration in the Central File of Legal Persons of an entity not subject to commercial registration; after the attribution of NIF by the tax authority, when it is an entity that should not be registered in the Central File of Legal Persons
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After the first declaration, all entities are obliged to update all the information contained in this declaration: whenever there are changes to the declared data, within 30 days of the fact that originates it; from 2020, on annual confirmation by July 15 of each year (entities that must present the Simplified Business Information make the annual declaration together with that).
Failure by the company to keep the register updated is punishable by a fine of €1,000 to €50,000 and implies that the company is prohibited to: distribute profits for the year or make an advance on profits; enter into supply contracts, public works contracts or purchase of services and assets with the State, autonomous regions, public institutes, local authorities; compete for the concession of public services; receive support from European structural and investment funds and public funds; intervene as a party to any business which has as its object the transfer of ownership or the constitution, sale or acquisition of any other rights over immovable property.
By Dr Eduardo Serra Jorge || features@algarveresident.com Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987. In his column, he addresses legal issues affecting foreign residents in Portugal. Faro office at Gaveto das Ruas Pedro Nunes e José de Matos, 5 R/C 289 829 326 www.esjmjgadvogados.com
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