7. září 2016 | News

Vyřeší vláda anonymitu firem?

Corruption and other significant criminal cases often share a common denominator, namely that the ultimate beneficiaries of public funding remain anonymous and cannot be tracked down. The government has long ignored the serious problem, but it was eventually forced to tackle the issue thanks to EU Directive IV, against money laundering. This week, in a third reading in the House, a decision will be made concerning the nature of the register of ultimate beneficiaries. But its currently submitted draft is dysfunctional and may be, with high probability, in conflict with the EU Directive mentioned above. However, for reasons beyond comprehension, it is assumed that the register will not be public. Deputy Klaška has attempted to partially save the amendment by suggesting that the register be subjected to public control and therefore made accessible to the general public.

In August 2011 the Anticorruption Endowment (NFPK or Endowment) presented a specially convened conference to present an articulated version of its solution to the issue of anonymous beneficiaries of public procurement contracts. Every recipient of public funds would be obliged to disclose the ultimate beneficiary of such financial means. Since that time, the NFPK in conjunction with other organizations has released numerous analytical outputs, studies, press releases and graphic representations, and participated in many conferences staged abroad. This whole lobbying marathon should ideally project into the register of ultimate beneficiaries, debated in parliament now.

In autumn 2015 the Government Council on Coordination of Struggle against Corruption clearly recommended in its standpoint the introduction of a public register of owners. A news conference ensued. To be on the safe side, the Anticorruption Endowment approached the leaders of all coalition parties. Andrej Babiš wrote in his letter to the NFPK in September 2015 that, following the NFPK objections, the articulated text only considers a public version of the register. But now, a year later, Andrej Babiš all of sudden supports a non-public register, in a sheer twist of his normally rational mindset. Public control is usually more efficient: there is no reason to hide the ultimate recipient of public funds. Paradoxically, the mandatory public register was proposed by EU Justice Commissioner Věra Jourová and a fully open register has the support of France, United Kingdom and the Netherlands, to name a few. The European Commission thus reacts to several recent affairs, such as the Panama Papers. A third reading therefore must logically support the motion tabled by Jaroslav Klaška, MP.

Open access is but one of many requirements posed on the workability of such a register. The European directive makes it a point that the information published in the register of ultimate owners shall be “adequate, precise and up to date”[1] and further stipulates that: “The need for accurate and up-to-date information on the beneficial owner is a key factor in tracing criminals.”[2] However, the information in the Czech register may not be often verifiable, meaning a conflict with the said directive. Furthermore the proposal anticipates the disclosure of information only in the ultimate layer of an incomplete ownership structure, rendering control quite problematic. Additionally the amendment invites serious concerns over the proclivity of suspect concerns to really disclose their ultimate owners. The supervisory system is needlessly complicated and inefficient, analogously to the supervision of the disclosure of financial statements of companies in the Business Register, where 60-70 percent of Czech firms routinely breaks the law and never posts their financial statements in the regulated form. In addition, the bill is needlessly complex by way of administrative process and the Anticorruption Endowment was told by the Register Courts that they perceive it burdensome on account of administrative and access-granting procedures. Therefore they support public access to the register.

The bill language as passed also enables the omission, in the register, of the identity of an owner of less than 25 percent of the shares. But this could ultimately absolve companies from their duty to disclose their owners upon the proviso that none of them has exceeded 25 percent. Circumventing the law can be precluded by the setting of a minimal shareholder participation in proving five-percent ownership in the companies that reach for public funds (public orders or subsidies). The NKPF has included all requirements for the owner’s register in its report http://www.nfpk.cz/cz/aktuality/4049.

Contact please; Janusz Konieczny, Analyst, e-mail: janusz.konieczny@nfpk.cz, tel.: 604 270 132

[1] Article 30 para 4, EU Anti-money laundering directive, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32015L0849

[2] Introductory words14 of EU anti-money laundering directive, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32015L0849