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New Measures Against Money Laundering Act and amendments in the Commerce Act

New Measures Against Money Laundering Act was promulgated in SG, issue No. 27 dated March 27, 2018, providing preventive measures against using the financial system for money laundering purposes, as well as organization and control over such measures. The persons for which the measures against money laundering are mandatory, shall adopt internal rules for control and prevention of money laundering, as the persons for which this obligation has arisen until entering into force of the new MAMLA, shall bring their internal rules in accordance with the new requirements. The rules shall be sent for approval to the Director of “Financial Intelligence” Directorate of the State Agency for National Security within 4 months term as of the adoption of the regulation for implementation of the MAMLA. The persons for which the measures against money laundering are mandatory and are part of a group, shall apply policies and procedures for control and prevention of money laundering and financing of terrorisms, which shall apply to the entire group and shall meet the requirements specified by the law. The persons for which the obligation to apply measures against money laundering has arisen until entering into force of the new MAMLA and are part of a group shall notify the Director of “Financial Intelligence” Directorate of the State Agency for National Security and the relevant supervisory authority and shall provide the entire information in regard to the policies and procedures for control and prevention of money laundering and financing of terrorisms applied to the whole group, within 30 days as of the adoption of the regulation for implementation of the MAMLA. § 1 of the Additional Provisions of the MAMLA provides a legal definitions of term “group”. The new MAMLA introduces the obligation to register the information and the data in regard to the actual owner of the capital of the legal persons and other legal formations established on the territory of the Republic of Bulgaria, on the account of such legal persons and legal formations at the commercial register, the non-profit legal entities register and the BULSTAT register. Until October 1, 2018 the Registry Agency shall ensure the possibility for registration of the data with the respective register, as within 4 months term as of the said day, the persons to which this obligation applies shall declare the data for registration. In view of the new MAMLA the Commerce Act has been amended, as new art. 65a has been adopted, pursuant to which the company shall be obligated to receive, maintain and provide in the cases specified by the law, accurate and current information in regard to the natural persons who are the actual owners of the company, including with detailed data on their rights. The identification data of the actual owners and the data of the legal persons or other formations through which, directly or indirectly, control is exercised, as required by the MAMLA, are subject to entry in the Commercial Register. New § 1e of the Additional Provision of the Commerce Act has been adopted, which provides a legal definition of the term “actual owner”, according to the meaning of § 2 the Additional Provisions of the MAMLA. Pursuant to the definition, in regard to the corporate legal persons and other legal formations the actual owner shall be deemed the person who directly or indirectly possesses sufficient percent of the shares or the rights to vote in the said legal persons or other legal formation, including through possession of bearer shares or through control by other means, excluding the cases of a company the shares of which are trade on the regular market in compliance with the requirements for announcement according to the European Union or of the equivalent international standards ensuring adequate level of transparency regarding the ownership. Indication for direct possession shall be in case the natural person/persons possesses shares at least 25% of the legal person or other legal formation. Identification for indirect possession shall be in case at least 25% of the shares of a legal person or other legal formation are possessed by a legal person or other legal formation which is under the control of the same natural person or persons or under the control of many legal persons and/or other legal formations, which eventually are under the control of the same natural person/persons. “Control” shall be the control under the meaning of § 1c of the Additional Provision of the Commerce Act, as well as any possibility which, without representing identification for direct or indirect possession, provides the possibility for dominant influence over legal person or other legal formation upon the decision making process for determination of the managers and the supervisory bodies, transformation of a legal person, winding up its activity and other essential issues for its activity. Identification of “indirect control” shall be exercising of ultimate effective control over the legal person or other legal formation through the execution of rights through third parties, including but not limited by virtue of authorization, contract or other transaction, as well as through other legal forms ensuring the possibility to exercise ultimate influence through third parties. In case after all possible means have been exhausted, the actual owner cannot be ascertained or any doubts have arisen that the ascertained person or persons are not the actual owner, for “actual owner” shall be deemed the natural person holding the position of a senior officer. The adopted MAMLA enters into force 3 days after its promulgation in SG.
 
   
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