Discreet, Yes – Invisible, No: Fiduciary Shareholdings in Family Businesses
Updated: 3 days ago
Fiduciary arrangements (Treuhandlösungen) are common among mid-sized and family-owned companies: a trustee (Treuhänder) holds shares in its own name, but for the account and on the instructions of another person, the principal (Treugeber). Such structures are found in business succession (Unternehmensnachfolge), where shares are held for children or other family members, in holdings that are not meant to be visible to the outside world, and in the participation of employees or investors. Only the trustee then appears in the shareholder list (Gesellschafterliste). As far as the Transparency Register (Transparenzregister) is concerned, that is not enough.
The Legal Position in Brief
The Transparency Register is intended to disclose which natural persons stand behind a company. The statute calls them “beneficial owners” (wirtschaftlich Berechtigte). A beneficial owner is any natural person who directly or indirectly holds more than 25% of the capital shares, controls more than 25% of the voting rights, or exercises control in a comparable manner (§ 3 Abs. 2 of the German Anti-Money Laundering Act, Geldwäschegesetz, “GwG”). Control exists in particular where the person is able to exercise a controlling influence over the company.
A principal who is able to give instructions to the trustee exercises precisely this control, even if only indirectly. The Federal Office of Administration (Bundesverwaltungsamt), as the competent supervisory authority, takes the view in its interpretive guidance (Auslegungshinweise) that, where an interest of more than 25% is held on a fiduciary basis, both the trustee and the principal must be reported as beneficial owners.
Who Is Obliged
The GmbH or KG must determine its beneficial owners, keep the information up to date and report it to the Transparency Register (§ 20 Abs. 1 GwG). In practice, this task lies with the management (Geschäftsführung).
The shareholders must provide the company with the necessary information. Where a shareholder is under the indirect control of a principal, this duty to provide information falls on the principal personally (§ 20 Abs. 3 GwG).
Since 1 August 2021, the Transparency Register has been a full register (Vollregister). The former reference to the commercial register (Handelsregister) no longer replaces a separate report. Every company must report actively.
Typical Pitfalls in Family Companies
Fiduciary holdings or sub-participations (Unterbeteiligung) in favour of children or siblings of which the management is unaware
Pooling agreements (Poolverträge) and voting agreements (Stimmbindungen) within the family branch: arrangements between shareholders can, in individual cases, establish control “in a comparable manner” (§ 19 Abs. 3 Nr. 1 GwG)
Changes following inheritance, gifts or succession that are not updated in the register
Why This Matters
Breaches of the reporting obligations are administrative offences (Ordnungswidrigkeiten) and are punishable by fines (§ 56 GwG). Final fine decisions are published on the internet for five years (§ 57 GwG). Banks, notaries and other parties obliged under the Anti-Money Laundering Act must report discrepancies between their own findings and the register entry (§ 23a GwG). In practice, gaps therefore often come to light only when it is most inconvenient: in financing, at the notary appointment or in a company sale.
Outlook
From 10 July 2027, the EU Anti-Money Laundering Regulation (Verordnung (EU) 2024/1624) will apply directly in all Member States. Under Art. 66 AMLR, trustees must disclose to the company that they are acting as trustees and who their principal is. The company must pass this information on to the register.
Our Recommendation
Review your fiduciary and pooling agreements now. Anchor information duties in shareholder and fiduciary agreements, and reconcile the entry in the Transparency Register, in particular with every succession measure.
