The new Commercial Code, approved by Decree-Law no. 1/2022 of 25 May (the “New CCom"), in its article 99, establishes the obligation for the companies to have, and maintain updated, a registration with information on the identity of its beneficial owner (“Beneficial Owner”) and, also, to communicate such information to the entity competent for registration (currently, the Legal Entities Registrar Office), thus broadening the scope of the companies regarding which this obligation shall be imposed under the Law for the Prevention and Fight of Money-Laundering and Financing of Terrorism (approved by Law no. 11/2022 of 7 of July).
The information on the identity of the Beneficial Owner must be confirmed through documents that allow the verification of their identity and of the elements necessary for its determination, namely, amongst others, the information regarding the structure and control of the company, list of members of the board of directors, registrars of the shareholders and number of shares held by each.
The matter related to the Beneficial Owner is extensively dealt with in the Law for the Prevention and Fight of Money-Laundering and Financing of Terrorism, and the New CCom only broadens the scope of the application to all commercial companies, consortiums, and commercial representations (local and foreign). Thus, the provisions of article 99 of the New CCom on the Beneficial Owner should be analyzed and interpreted together with the above-mentioned Law for the Prevention and Fight of Money Laundering and Financing of Terrorism.
As such, under the New CCom, Beneficial Owner shall be understood as the natural person who is the ultimate owner or who has the final control of the company, namely: (i) the natural person who, in the last instance, holds the ownership or control, directly or indirectly, equal or superior to 10% of the share capital of the company or of the voting rights in the company that is not a listed company subject to information requisites compatible with international norms; (ii) the natural person who, in any way, exercises the control over the management of the company; and (iii) the natural person who holds the ownership or control, directly or indirectly, equal or superior to 10% of units of participation or titles in circulation in a collective investment organism.
The regulation on the Beneficial Owner results from Mozambique’s adoption of the International Standards for Fighting Money-Laundering and Financing of Terrorism and Proliferation, knowns as GAFI Recommendations. Among GAFI´s recommendation, we highlight recommendation 24 on the Transparency and Beneficial Owners and Legal Persons where countries must ensure that there is enough transparency and in the case of commercial companies, the processes of (i) creation; and (ii) obtaining and conservation of basic information on the beneficial owners, are identified, described, and made publicly available.
It is in this regard that, on the one hand the Law on Prevention and Fight of Money-Laundering and Financing of Terrorism inserts norms that aim to reinforce the transparency and availability of the Beneficial Owner of some of the commercial companies, legal entities and entities with no legal personality and, on the other hand, the New CCom broadens the scope of those entities to all commercial companies, regardless of their business purposes or activities pursued.
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Read the original publication at Sal & Caldeira Advogados.