Briefly Criminal – Red Alert for the RBE
Red Alert for Filings with the Register of Beneficial Owners (RBE)
Background
In a joint press release dated 4 May 2026, the Public Prosecutor’s Offices of Luxembourg and Diekirch announced that they would carry out “systematic” checks regarding compliance with the criminal provisions contained in the Law of 13 January 2019 establishing a Register of Beneficial Owners (the “RBE Law”).
The announcement of these checks will necessarily lead to a resurgence of criminal proceedings based on breaches of the obligations laid down by the above-mentioned law.
Entities subject to RBE filing requirements should therefore:
- Know their obligations;
- Understand the consequences of breaching those obligations.
The origins of the RBE Law
In 2019, by adopting the RBE Law, the Luxembourg legislator sought to transpose Article 30 of EU Directive 2015/899, dealing with information on beneficial owners.
That provision imposed two sets of obligations:
- An obligation on the relevant entities to obtain and retain, at their registered office, information relating to their beneficial owners;
- An obligation on Luxembourg to create a Register of Beneficial Owners accessible to the public and to the competent Luxembourg authorities responsible for combating money laundering and terrorist financing.
The purpose of transposing this directive was therefore to strengthen the fight against money laundering and terrorist financing by increasing transparency and enabling the competent authorities to identify the beneficial owners of companies whose registered office is in Luxembourg.
In summary, the relevant entities are therefore required to:
- Register with the RBE the following information concerning their beneficial owners: surname, first name, nationality, full date of birth, place of birth, address, nature of the beneficial interests held and extent of the beneficial interests held (Article 3 of the RBE Law);
- Register such information without delay once they become aware of it;
- Amend such information without delay once they become aware of any change.
Who are the beneficial owners?
The definition of a beneficial owner is not expressly set out in the RBE Law, but in the Law of 12 November 2004 on the fight against money laundering and terrorist financing.
More specifically, it is contained in Article 1(7), which defines a beneficial owner as follows:
“Any natural person who ultimately owns or controls the customer or any natural person on whose behalf a transaction or activity is being conducted. The concept of beneficial owner includes at least: a) in the case of corporate entities:
i) any natural person who ultimately owns or controls a legal entity through direct or indirect ownership of a sufficient percentage of shares or voting rights or an ownership interest in that entity, including through bearer shareholdings, or through control via other means, other than a company listed on a regulated market which is subject to disclosure requirements consistent with European Union law or equivalent international standards ensuring adequate transparency of ownership information.
A shareholding of 25 per cent plus one share or an ownership interest of more than 25 per cent in the customer held by a natural person shall be an indication of direct ownership. A shareholding of 25 per cent plus one share or an ownership interest of more than 25 per cent in the customer held by a company which is controlled by one or more natural persons, or by several companies which are controlled by the same natural person or persons, shall be an indication of indirect ownership;
ii) if, after having exhausted all possible means and provided there are no grounds for suspicion, no person under point i) is identified, or if there is any doubt that the person or persons identified are the beneficial owners, any natural person who holds the position of senior managing official.”
Criminal provisions of the RBE Law
Once this framework is established, the RBE Law provides for criminal sanctions in the event of breaches of the obligations it imposes.
Article 20(1) of the RBE Law provides for a fine ranging from EUR 1,250 to EUR 1,250,000 for an entity that fails to submit an application for registration with the Register of Beneficial Owners or fails to update information already registered.
Article 20(2) of the RBE Law provides for a fine ranging from EUR 1,250 to EUR 1,250,000 for an entity that makes an inaccurate, incomplete or outdated declaration.
Article 21 of the RBE Law also provides for a fine ranging from EUR 1,250 to EUR 1,250,000 for entities that:
- Fail to obtain and retain, at their registered office, the required information regarding their beneficial owners (Article 21(1) of the RBE Law);
- Knowingly provide inaccurate or outdated information when required to do so by the competent authorities.
Article 21(3) provides for the same fine to be imposed on a beneficial owner who, when requested by the entity, fails to provide the information required for its RBE filing.
In addition to the fine, the entity concerned may also face dissolution without liquidation.
Uncompromising case law
The question arose as to whether entities that fail to comply with their obligations through negligence, or which in good faith provide inaccurate information to the RBE, could avoid conviction in the absence of any intention to breach those obligations.
On this point, the case law has been uncompromising, as illustrated by the reasoning of the Court of Appeal in its judgment of 12 May 2021 (164/21 X):
“The offence is deemed to be established solely by the finding that the entity failed, within the applicable time limit, to apply for registration of its beneficial owner by providing his or her identity and contact details as listed in Article 3 of the 2019 Law, such omission constituting an offence in itself.”
The judgment specifies the circumstances in which criminal liability could potentially be avoided. These are highly restrictive and require:
“a justification, namely a circumstance intended to demonstrate that the person did not act freely and knowingly and was unable to act, which nevertheless presupposes the absence of any prior fault and, in the case of duress resulting from force majeure, an irresistible event. By contrast, merely relying on good faith is irrelevant.”
Brucher Thieltgen & Partners supports you
Have you been summoned for questioning in connection with a possible breach of the RBE Law?
Have you been summoned to appear before a court for an alleged breach of the RBE Law?
Our Criminal Litigation team can assist you in:
- Understanding the allegations made against you;
- Identifying the source of any potential breaches;
- Providing the authorities with relevant supporting evidence;
- Developing a defence strategy together.
➡️ For any questions relating to criminal law, please contact Fanny Gilliers and Bastien Desjardins.