Inspection of the Beneficial Owner Register
Obliged entities may inspect the beneficial owner register for their due diligence duties to prevent money laundering and terrorist financing. Authorities may inspect the register for certain statutory purposes. Other persons or organizations may inspect the register only if they can prove they have a legitimate interest. The Register of Beneficial Owners was designed to be a non-public register pursuant to the provisions of the 4th Money-Laundering Directive.
1. Inspection by obliged entities
In accordance with the objectives of BORA, obliged entities may only inspect the Register to fulfil their due diligence requirements for the prevention of money laundering and terrorist financing with respect to customers. In addition, legal professionals acting in a professional capacity may also inspect the Register for the purpose of advising their clients with respect to identifying, verifying and reporting the beneficial owners of their clients.
Obliged entities within the meaning of the Article 9 para. 1 BORA are:
- credit institutions and financial institutions
- olders of government-approved licences pursuant to Article 14 and Article 21 GSpG;
- authorised operators of gaming machines and betting companies that have been established on the basis of an authorisation under regional law;
- attorneys, notaries, external auditors, tax advisors, balance sheet accountants, accountants and payroll accountants
- commercial traders including auctioneers, provided that they accept payments in cash of at least EUR 10,000, real estate agents, business consultants and insurance brokers
- the Austrian Treasury (Österreichische Bundesfinanzierungsagentur).
Obliged entities may inspect the register by using the one-stop-shop Business Service Portal called Unternehmensserviceportal (USP) of the Austrian Federal Government. When logging in to the USP the system automatically detects what kind of role the legal entity has. In addition each obliged entity will be able to register multiplicity of users.
The system automatically detects if an entity using the USP is an obliged entity. The obliged entity will then be able to inspect the register by using the application “WiEReG Management System”:
Obliged entities may search for obliged entities and retrieve simplified or extended excerpts by using the “WiEReG Management System”. Certain obliged entities may search also for natural persons. When they search for a natural person they will receive a list of all legal entities where this natural person has been reported.
If the obliged entity is a professional counsel (attorneys, notaries, external auditors, tax advisors, balance sheet accountants, accountants and payroll accountants), this will be automatically detected by the USP. As a result the legal professional will get access to the BORA – reporting forms, so that he is able to report beneficial owners on behalf of its clients.
Commercial traders including auctioneers, provided that they accept payments in cash of at least EUR 10,000, real estate agents, business consultants and insurance brokers cannot be automatically detected. They may apply to the competent trade authority for authorisation to inspect the Register. In the case of granting authorisation to inspect, the trade authority will submit the name and identification number via an interface to the USP allowing them to inspect the register by using the “WiEReG Management System”.
2. Inspection by authorities
In accordance with the objectives of BORA access to the register is also granted to several governmental authorities:
- the registry authority within the powers conferred upon it in accordance with this Federal Act;
- the Financial Intelligence Unit (Geldwäschemeldestelle) within the powers conferred upon it in accordance with the BKA-G;
- the following supervisory authorities within their duties for preventing the financial system from being used for the purpose of money laundering and terrorist financing:
- the FMA in relation to its supervision of credit institutions and financial institutions pursuant to Article 25 FM-GwG;
- the Federal Minister of Finance in relation to its supervision of holders of government-approved licences pursuant to Articles 14 and 21 GSpG;
- the competent regional authorities with regard to the supervision of regionally authorised parties for the operation of gaming machines and providers of betting services pursuant to Article 9 para. 1 no. 5 BORA within the meaning of the regulations set out under regional law;
- the Bar Association within the scope of its supervision of attorneys;
- the Austrian Chamber of Notaries (Notariatskammer) within the scope of its supervision of notaries;
- The Chamber of Professional Accountants and Tax Advisors (KWT; Kammer der Wirtschaftstreuhänder) within the scope of its supervision of external auditors and tax advisors;
- the President of the Austrian Economic Chambers (WKO) within the scope of the WKO's supervision of balance sheet accountants, accounts and payroll accountants;
- the local administrative authorities within the scope of supervision of financial institutions pursuant to Article 9 para. 1 no. 3 BORA, traders on a commercial basis including auctioneers, provided that they accept payments in cash of at least EUR 10 000, real estate agents, business consultants, insurance brokers;
- the local administrative authorities for the purposes of initiating and conducting of administrative penal proceedings;
- the law enforcement authorities, public prosecutors and criminal law courts;
- the fiscal penal authorities and the Federal Fiscal Court (Bundesfinanzgericht) for purposes under fiscal penal law;
- the Federal Government's tax authorities and the Federal Fiscal Court (Bundesfinanzgericht) for tax law purposes, where this is expedient and appropriate for the purpose of collection of taxes.
- the Oesterreichische Nationalbank for the purposes of the performance of its duties pursuant to Article 8 of the Sanctions Act (SanktG) and Article 5 of the Foreign Exchange Act of 2004 (DevG; Devisengesetz 2004);
- the Federal Minister of the Interior for the purposes of performing the duties conferred pursuant to Article 8 SanktG;
- the security authorities for the purposes of security police
Authorities may inspect the register by using an internal government application “WiEReG – Register der wirtschaftlichen Eigentümer”:
Authorities may search for legal entities and for natural persons. When they search for a natural person they will receive a list of all legal entities where this natural person has been reported.
The registry authority, the Financial Intelligence Unit (Geldwäschemeldestelle), the Police service’s criminal investigations department, the Public Prosecutor’s Offices and the law court may request an excerpt for any natural person, who is able to be clearly determined by entering one or more additional identifiers in addition to their forename(s) and surname, which contains all data stored about this person in the Register.
On top of that the registry authority may perform analyses for ensuring the correctness and completeness of the data as well as for the prevention of money laundering and terrorist financing. For this purpose the Bundesanstalt Statistik Austria will make statistical and qualitative analyses and evaluations available to the registry authority concerning all the details stored in the Register.
3. Inspection by natural persons and organisations
Persons or organizations may inspect the register only if they can prove they have a legitimate interest. They have to file an application by using an online form.
In the application, the applicant must prove it has a specific legitimate interest in connection with the prevention of money laundering and terrorist financing with respect to this legal entity. A pre-condition for the existence of a legitimate interest is that the applicant that has included an obligation in its statutes or mission statement to conduct activities to prevent money laundering and terrorist financing, is able to prove specific successful activities for the prevention of money laundering or terrorist financing, or is itself an obliged entity pursuant to Directive (EU) 2015/849. In addition, it must be proven what specific contribution the requested excerpt may make towards the prevention of money laundering or terrorist financing (Article 10 para. 3 BORA).
If a legitimate interest has been established, the registry authority must send the applicant an excerpt pursuant to Article 10 para. 2 BORA. To reject an application, the registry authority must issue a written notification. The Federal Fiscal Court has jurisdiction over appeals of decisions of the registry authority.
An excerpt pursuant to Article 10 para. 2 BORA, which will be sent if there is a legitimate interest, will contain the following information:
- Identification number, identification register, name of the legal entity and address details of the legal entity
- Legal form and information regarding the period of time for which the legal entity has been in existence
- Beneficial owner’s forename and surname, date of birth and country of residence
- Nature and scope of the beneficial ownership