ED04 - Transparency Register at Formation: Beneficial Owners, Pre-Company, Fictitious Beneficial Owners

Problem

With the formation of a corporation, obligations arise that do not follow from the commercial register and that many founders overlook: the transparency obligations of the Money Laundering Act (GwG). Since the Transparency Register and Financial Information Act (TraFinG), the Transparency Register has been a full register - the former "deemed notification" fiction (information is deemed notified if it appears in the commercial register) has been abolished without replacement as of 01.08.2021.

The typical mistakes during the formation phase:

• "It's all in the commercial register anyway" - the deemed-notification fiction no longer exists; every company must actively notify (§ 20 Abs. 1 GwG)
• Pre-company overlooked - the company in formation (i. Gr.) is already subject to notification; the initial notification is omitted if the commercial register filing is made within three months after the articles of association - otherwise notification is required
• Cascades not calculated through - if a holding company holds the shares, it is not enough to name the holding company; the natural person behind the chain must be determined
• Fictitious beneficial owners misjudged - if the shareholders are themselves corporate entities and no natural person can be determined, the legal representatives are deemed beneficial owners - this fiction must be expressly reported with justification

Key Statement

Transparency Register obligations are formation obligations - they arise with the articles of association, not with the first sale:

1. All legal entities under private law (GmbH, UG, AG, SE, KGaA, registered associations, cooperatives, foundations with legal capacity) and registered partnerships (OHG, KG, PartG, from 01.01.2024 also eGbR) are subject to notification - §§ 20, 21 GwG. Not subject to notification: sole proprietorships, e. K. and the (unregistered) GbR.
2. Beneficial owners (BOs) are exclusively natural persons who directly or indirectly hold more than 25% of the capital shares, control more than 25% of the voting rights or exercise control in a comparable manner (§ 3 Abs. 2 GwG) - for example as a general partner or through veto rights with structuring effect.
3. Indirect beneficial ownership: If a corporate entity holds the shares, the BO is the person who controls the parent entity - generally from more than 50% of the capital shares or voting rights at each level of the chain (§ 3 Abs. 2 S. 2-4 GwG i. V. m. § 290 HGB).
4. Fictitious BOs: If no natural person can be determined even after a comprehensive, documented review, the legal representatives (managing directors, managing shareholders) are deemed beneficial owners (§ 3 Abs. 2 S. 5 GwG) - with justification of the fiction in the notification.
5. Pre-company (i. Gr.): The active pre-company is also subject to bookkeeping and tax obligations - and thus to transparency obligations. Initially, notification is made as "Other Legal Structure" with the addition "i. Gr."; the notification is not required if the commercial register filing is made within three months after the articles of association. After entry, the HR number is submitted subsequently as a change notification.
6. Content of the notification (§ 19 Abs. 1 GwG): first and last name, date of birth, place of residence, all nationalities, nature and extent of the economic interest as well as the validity date.

Compliance by Design: BO determination is not a formality but a documented determination process - from the articles of association through the list of shareholders to the cascade analysis. Exactly this process belongs in the Git repo: as a JSON artifact with V7GUID, sidecar and SHA-256 references to the source documents. The determination in ED04 is the basis for GoBD-compliant documentation (ED12) and the execution of the notification (ED18, ED19).

The Cascade by Example

E1 is an entrepreneur and sole shareholder. The group is structured as a cascade

• a typical holding case:

Determination for ORG-1 (the gUG):

1. Direct? The shareholder is ORG-5 (GmbH) - a corporate entity, not a natural person. No direct BO.
2. Indirect? Who controls ORG-5? E1 holds 100% of ORG-5 - that is more than 50%, thus controlling influence. E1 is therefore indirectly a beneficial owner of ORG-1: nature of the interest "indirect control over ORG-5", extent "100% of ORG-5".
3. Notification: ORG-1 reports E1 as an indirect BO - stating the chain (ORG-1 ← ORG-5 ← E1).

Determination for ORG-5 itself (the holding):

1. Direct shareholder: E1, natural person, 100% → E1 is a direct BO of ORG-5 (extent: 100% capital shares).

Important: Each company in the chain carries out its own determination and its own notification - even if the same natural person (E1) is ultimately identified for all of them. The obligation applies to the association, not the person.

Fictitious Beneficial Owners: the "Virtual" Beneficial Owners

The most common misunderstanding in practice: If the shareholders are corporate entities and no natural person with > 25% can be determined, the managing director is deemed a BO - not "nobody":

• If several persons are legal representatives, all of them must be reported.
• The fiction must be justified (no BO can be determined despite comprehensive review / ownership and control structure not fully traceable).
• When the managing director changes, the fictitious BO changes as well - the change must be reported without undue delay. Anyone who does not understand the fiction systematically overlooks this obligation (ED19).

Git-native view: The fiction is not an edge case but the normal case of group structures. In the Git repo, the fiction is a classified artifact: wb_fiktion.json with justification, review date, reviewed chain and SHA-256 references to the list of shareholders and articles of association. If the review later has a different outcome (e.g., new shareholders), the artifact is not changed but replaced by a new one - obsolescence tracking (superseded_by) shows which fiction applied when and why.

Timeline of Formation Obligations

Deadline trap: "Without undue delay" (§ 121 BGB) means without culpable delay - anyone who waits for the commercial register entry and only then notifies generally does not act without undue delay according to the Federal Office of Administration. The GitCover approach: The trigger (articles of association, commercial register entry, share deal) automatically creates a diary entry with an obligations checklist - the deadline is visible in the repo before it is jeopardized.

What Goes into the Git Repo

Legal note: Shareholders and BOs have their own disclosure obligation toward the company (§ 20 Abs. 3 GwG): They must provide the information required for the notification and communicate any change without undue delay. In the group, this means: E1 provides his information to every ORG-n - each company documents receipt as an artifact.

Risk Leverage

Sanctions (Overview)

• Violations of the transparency obligations are administrative offences (§ 56 Abs. 1 S. 1 Nr. 54-66 GwG): fines of up to EUR 150,000, and in serious, systematic or repeated cases up to EUR 1 million (in some cases beyond that).
• Fine notices can be publicly announced by the supervisory authority - additional reputational risk.
• Details, discrepancy proceedings and fine practice: ED19.

Harness Requirement (Preview)

The complete list of requirements is in Harness-Anforderungen.md.

Sources

• Money Laundering Act (GwG): § 3 (beneficial owners), § 19 (information), § 20 (notification obligations, pre-companies), § 21 (trusts, foundations), § 23a (discrepancy notifications), § 56 (fines)
• Transparency Register and Financial Information Act (TraFinG) - abolition of the deemed-notification fiction as of 01.08.2021 (full register)
• Federal Office of Administration: information sheet on the notification obligation of beneficial owners (as of 01/2025) - www.transparenzregister.de
• MoPeG (reform of partnership law) - eGbR in the company register from 01.01.2024
• § 290 HGB (controlling influence) i. V. m. § 3 Abs. 2 S. 2-4 GwG

Source Topology and CDN Reference Links

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