The French company filing landscape is undergoing a time of change. Beginning in 2023, differing company registers merged into a “one-stop shop,” a single national register. Additionally, the Court of Justice of the European Union invalidated the right of any member of the general public to access the central registers of ultimate beneficial owners.

LAUNCH OF THE NEW COMPANY FORMALITIES ONE-STOP SHOP

Legal formalities related to French companies used to be carried out through the “Centre de Formalités des Entreprises” (CFE), the formalities center previously managed by chambers of commerce and industry, chambers of trade and crafts, chambers of agriculture, court registries, the social security contributions and charges union (URSSAF) and company tax departments.

Since January 1, 2023, and implementing the “loi Pacte” [1] from 2019, a company one-stop shop (or guichet unique des entreprises) has been deployed in three distinct stages:

• On July 1, 2021, the one-stop shop became accessible to professionals duly mandated to carry out the formalities for their clients;
• On January 1, 2022, access opened to all founders and entrepreneurs;
• On January 1, 2023, the website of the French intellectual property national institute—“Institut National de la Propriété Industrielle” (INPI)—became the only pathway to carry out business formalities.

As of January 1, 2023, the different registers relating to companies merged into a single national register of companies—“Registre National des Entreprises” (RNE).

The INPI one-stop shop brings together a number of formalities, in particular formalities relating to the creation, registration, modification, or sale of companies, but will also allow a better monitoring of the successive the formalities carried out by companies

In practice, however, there are still certain exceptions, in particular with regard to the filing of annual accounts. These can still be filed with the companies and trade registry of the commercial court within one month of the approval of the accounts. The filing deadline is two months instead of one if the accounts are filed online on the INPI one-stop shop website, therefore incentivizing companies to use the new online platform.

In addition, the Infogreffe website, previously used for the formalities of commercial companies, will remain available, for example, to obtain a “Kbis” extract (which is similar to a certificate of registration in other jurisdictions).

ADDRESSING TECHNICAL ISSUES

An order of December 28, 2022 [2] anticipated possible technical issues with the one-stop shop launching and set up a backup procedure to allow formalities to be carried out through the enterprise counter (guichet-entreprises) if the INPI one-stop shop is unavailable.

INCREASE IN THE AMOUNT OF INFORMATION PROVIDED WHEN INCORPORATING A COMPANY

Other changes became effective on January 1, 2023. New pieces of information now have to be provided when incorporating a company. Specifically, it is now mandatory to include the domain name of the company’s website when there is one, as well as the telephone and electronic contact details of the corporate officers, certain partners, and even the spouses or partners of the manager in certain cases. However, this information will only be accessible to authorities and administrations, such as the general direction of public finance, notaries, or judicial commissioners. [3]

THE COURT OF JUSTICE OF THE EU INVALIDATES ACCESS BY INDIVIDUALS TO REGISTERS OF BENEFICIAL OWNERS

As a transposition of the EU Directive 2015/849 on Anti-Money Laundering and Terrorist Financing (AMLD IV), France implemented an ultimate beneficial owners’ (UBOs’) register that makes certain information on UBOs publicly available on the French companies and trade register. An important decision of the Court of the Justice of the European Union has been rendered in this regard.

On November 22, 2022, the Court of Justice of the European Union [4] (ECJ) invalidated the right of any member of the general public to access the central registers of UBOs, considering that this faculty was constitutive of a major intrusion into the right to privacy protected by Articles 7 and 8 of the European Convention on Human Rights.

The ECJ considered that by opening access to central registers to the general public in 2018, the European Union’s institutions went beyond what was necessary in order to reach the objective of anti-money laundering [5] . Also, the judges found that the nature of the information available to the general public was disproportionate in light of that objective.

Prior to this decision, the general public was allowed to have access to central registers containing information on UBOs of the entities incorporated in European member states territories, as well as the details of beneficial interests held in those entities [6] in order to maximize transparency and prevent abuse of the financial system for money laundering and terrorism purposes.

Following the Court’s decision, the access to the Luxembourgian central register has been suspended to the general public and progressively reopened to professional justifying of a legitimate interest. Many European countries, such as the Netherlands, Ireland, or Germany, have followed the Luxembourgian decision and closed their access to their national register [7].

After the closure of the public access of the French central register regarding beneficial ownership (“registre des bénéficiaires effectifs”), on January 1, 2023, [8] the French government decided to reinstall the access on January 19, 2023. [9]

This ECJ decision and its consequences must now be discussed between the European Council and the European Parliament in the scope of the forthcoming sixth anti-money laundering directive. According to the European Council, the terms of this sixth directive should guarantee that any private individual or legal entity justifying a legitimate interest could access details and information contained in the central registers of UBOs. [10]

The French government seems to be willing to limit its central register’s access in the same conditions. According to French Minister for Economic Affairs and Finance Bruno Le Maire, the upcoming terms of access should enable media organizations and civil organizations that justify a legitimate interest to access the French central register of UBOs.

Law clerks Louis Bavouzet and Baptiste Bezault contributed to this LawFlash.

[1] Loi Pacte No. n°2019-486 of May 22, 2019.

[2] Arrêté of December 28, 2022, issued for the implementation of Article R. 123-15 of the Commercial Code

[3] Article L213-318 of the Commercial Code

[4] ECJ, 22-11-2022, case. C-37/20, WM vs Luxembourg Business Registers

[5] European Directive 2018/843 of the European Parliament and of the Council of 30 May 2018 amending European Directive 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing

[6] Article 1.15.c of European Directive 2018/843 amending Article 30.5.c of European Directive 2015/849

[7] A. El Idrissi, A. Michel and J. Baruch, December 7, 2022, "In one day, the court destroyed years of work”: Shock at European ruling on financial transparency, Le Monde.

[8] M. Romain, M. Vaudano, A. El Idrissi, A. Sénécat and A. Michel, December 5, 2022, “Transparence financière: la France suspend discrètement son registre des bénéficiaires effectifs de sociétés”, Le Monde.

[9] P. Januel, February 1st, 2023, Le registre des bénéficiaires effectifs bientôt refermé ?, Dalloz Actualité.

[10] P. Januel, February 1st, 2023, Le registre des bénéficiaires effectifs bientôt refermé ?, Dalloz Actualité.

[View source.]