Disclosure Requirements - Investment Funds - Malta
Disclosure Category: 2
Clearstream Banking S.A ("CBL") may be required under the laws and regulations of Malta to disclose, upon request, the identity, information and holdings on CBL customers and ultimate beneficial owners for holding investment funds in Malta.
In order to comply with the local legislation, customers with holdings in Malta investment funds or entering into transactions in the Malta market must consent and are hereby deemed to consent to the required legal disclosure. Such consent includes the appointment of the requestor (for example, the Fund Manager, Transfer Agent, Regulator) as their attorney-in-fact, under power of attorney, to collect from CBL the required information to be disclosed. Customers who do not grant such authority cannot hold such investment funds or financial instruments in their accounts with CBL.
Sanctions and AML laws obligate Maltese investment funds to verify, on a continuous basis, the identity of CBL and the ultimate beneficial owner of the shares/units. Further, under the Register of Beneficial Owner Regulations (transposition of the AMLD register of beneficiaries): (a) beneficial owners with more than 25% in a company (including an investment fund) must be notified to the company who will in turn be obliged to notify the Malta Business Registry (“MBR”) for inclusion in the register and (b) beneficiaries under a trust (e.g. a unit trust) will need to be notified to the Malta Financial Services Authority (“MFSA”) as holder of the register of beneficial owners in relation to trusts. Under the Companies Act, a company has the right to ask any registered shareholder for details of any beneficial owners of such shares.
Background and legal basis
Prevention of Money Laundering Act (Cap. 373, laws of Malta).
Trusts and Trustees Act (Register of Beneficial Owners) Regulations (S.L. 331.10)
Companies Act (Register of Beneficial Owners) Regulations (S.L. 386.19)
Obligation to report threshold crossings
In relation to investment funds in corporate form, The Companies Act (Register of Beneficial Owners) Regulations require Maltese companies to report any beneficial owner holding or controlling 25% or more of the shares in the company.
If CBL’s customer and/or the ultimate beneficial owner does not cooperate with or provide the necessary AML documentation, (a) the investment fund may not accept CBL as an investor on behalf of CBL’s customer or (b) the investment fund may in terms of its statute take more drastic action such as mandatorily redeem the investment.
The customer undertakes to hold CBL harmless and to indemnify CBL from any loss, claim, liability or expense asserted against or imposed upon CBL as a result of the customer failure, whatever the failure, to comply with these disclosure requests.
The information contained in the Disclosure Requirements is based on the legal opinion obtained by CBL that was issued on 24 August 2021 and the nominee agreements entered into with the fund managers. CBL believes the information to be correct as of that date but disclaims any responsibility as to the accuracy and completeness of the information after that date. In the case of discrepancy between the information provided by CBL and the local laws and regulations, the latter shall prevail. The Disclosure Requirements do not constitute legal advice and customers should seek advice from independent professional counsel.
Customers are responsible for ensuring compliance with the disclosure requirements and agree to indemnify and hold harmless CBL, for any loss, expense, liability, damage or claims, whether direct or indirect, against or incurred by CBL arising out of or resulting from such non-compliance.