Katrine Sauer (EM-DEP)
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Pernille Christiansen
14. december 2018 11:46
Pernille Christiansen
VS: Udlevering af svar fra KOM til Erhvervs-, Vækst- og Eksportudvalget
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To whom it may concern.
Christian Fuglsang
29. september 2015 18:50
Question regarding the implementation of Directive (EU) 2015/849
In connection with the implementation of article 30 in Directive (EU) 2015/849 in Danish law, I have run into a
question regarding the Directive’s scope of application concerning small foundations.
According to the Danish Foundations Act (consolidated act no. 938 of 20 September 2012 with later amendments),
small foundations with assets worth less than 1 million DKK (approximately 133 333 €) are excluded from the act’s
scope of application with a few exceptions. Such foundations are thus only under an obligation to form by-laws with
a certain content and to make sure that the foundation’s assets and net capital are in a reasonable proportion to the
foundation’s purpose. See section 1 (6) in the Danish Foundations Act.
It is not clear for the Danish Ministry of Justice whether such foundations are bound by the obligation to obtain and
hold adequate, accurate and current information on their beneficial ownership, including the details of the
beneficial interests held, and to make sure the information is held in a central register according to article 30 in the
Directive.
On the one side, article 3 (6) (c) of the Directive states that foundations are covered by the Directive. Moreover,
number 12 in the preamble reads that Member States should ensure that the widest possible range of legal entities
incorporated or created by any other mechanism in their territory is covered.
On the other side, number 22 in the preamble reads that the risk of money laundering and terrorist financing is not
the same in every case and that, accordingly, a holistic, risk-based approach should be used. Moreover, number 27
of the preamble reads that it is appropriate to take account of the characteristics and needs of smaller obliged
entities which fall under the scope of the Directive, and to ensure treatment which is appropriate to their specific
needs, and the nature of the business when applying the Directive.
The Danish Ministry of Justice is at first of the understanding that such small foundations are not covered by the
Directive. The Danish Ministry of Justice places emphasis on the fact that such small foundations have less valuable
assets (and do not thus imply a proper risk of money laundering or terror financing) and on the fact that such small
entities are not bound by the same thorough obligations as foundations with assets worth 1 million DKK and more
(it would thus seem to be unjust to oblige such foundations to obtain and hold adequate, accurate and current
information on their beneficial ownership and to make sure the information is held in a central register according to
article 30 in the Directive.
However, the Danish Ministry of Justice acknowledges that the Directive is not clear on this matter
Accordingly, can you please contact me by phone or e-mail as soon as possible, regarding the issue? I would be
grateful if you could get back to me tomorrow (30 September) as we have a deadline to have our legislative proposal
ready by the end of the week. If you need any further information, please do not hesitate to contact me.
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