Section 3 GwG – Beneficial owner
(1) For the purposes of this Act, beneficial owner means
- the natural person who ultimately owns or controls the contracting party, or
- the natural person at whose instruction a transaction is ultimately carried out or a business relationship is ultimately established.
2In particular, beneficial owners include the natural persons listed in subsections (2) to (4).
(2) 1In cases of legal persons other than foundations with legal capacity and of other corporate entities that are not listed on an organised market as defined in section 2 (11) of the Securities Trading Act and that are not subject to transparency requirements with regard to voting rights consistent with Community laws or to equivalent international standards, beneficial owners include any natural person who, directly or indirectly,
- holds more than 25 per cent of the capital,
- controls more than 25 per cent of the voting rights or
- exercises control in a comparable manner.
2In particular, indirect control is deemed to exist when the corresponding ownership interests are held by one or more associations as defined in section 20 (1) that are controlled by a natural person. 3Control is deemed to exist in particular if the natural person is able to exercise, directly or indirectly, a controlling influence on the
association as defined in section 20 (1). 4In cases of controlling influence, section 290 (2) to (4) of the Commercial Code applies, with the necessary modifications. 5If, even after extensive investigations and in the absence of facts as specified in section 43 (1), the association as defined in section 20 (1) subject to the notification requirement is unable to identify any beneficial owner as defied in subsection (1) or sentences 1 to 4, the beneficial owner is deemed to be the legal representative, shareholder-manager or partner of the contracting party.
(3) In the case of foundations with legal capacity and legal arrangements used to manage or distribute trust assets or through which third parties are instructed with such management or distribution, or comparable legal constructs, beneficial owners include:
- any natural person acting as a settlor, trustee or protector, if any,
- any natural person who is a member of the board of the foundation,
- any natural person designated as a beneficiary,
- to the extent that the natural person intended to be the beneficiary of the managed assets is yet to be designated, the group of natural persons for whose benefit the assets are intended to be managed or distributed,
- any natural person who otherwise directly or indirectly exercises a controlling influence on the management of assets or property or the distribution of income, and
- any natural person who can directly or indirectly exercise a controlling influence on an association and who is a member of the board of the foundation or has been designated as a beneficiary of the foundation.
(4) 1In cases of trading on instruction, the person at whose instruction the transaction is carried out is deemed to be a beneficial owner. 2Insofar as contracting parties act as trustees, they are also deemed to be trading on instruction.