The modified Law on Anti-Money Laundering and Combating of the Financing of Terrorism of 12 November 2004 (“AML Law”) applies to a number of professionals, including “trust and company service providers” (“TCSPs“).
TCSPs are currently defined in the AML LAW as follows (Article 1(8) AML):
any natural or legal person who provides, by way of a business relationship, any of the following services to third parties:
a) incorporating companies or other legal persons ;
(b) acting as, or arranging for another person to act as, a “director”, manager, administrator, member of the management board” or secretary of a company, a partner of a “partnership” or a similar function in respect of other “types of” legal persons;
(c) providing a registered office, business, administrative or mailing address” or business premises and, where applicable, any other service in relation to a company, partnership, other legal person or other similar legal arrangement;
d) acting as, or arranging for another person to act as, a fiduciaire in a fiducie, a trustee of an express trust or an equivalent function in a similar legal arrangement;”
(e) acting as, or arranging for another person to act as, a nominee shareholder for another person
The VAT Administration is the supervisory authority for on-site inspections of TCSPs (Article 2-1 AML).
Case law has had the opportunity to give some clarification on the definition of TCSPs (Administrative Tribunal 29 March 2022 n°45002).
In this case, the VAT Administration carried out an on-site inspection of a co-working space and found various breaches of the AML Law and imposed a fine.
The company operating the co-working space challenged the fine before the Administrative Court, claiming that it did not fall within the scope of the AML Law.
The Court first noted that the co-working space in question operated a business center that offered private office rental and the rental of “CO-WORKING” spaces spread over three business centers. Among the services offered, the business center charged for “mail reception and forwarding”.
The Court had first noted that the simple conclusion of a commercial lease contract did not necessarily amount to the provision of a head office or a commercial, administrative or mailing address, if the conclusion of the lease contract was not accompanied by other services that go beyond the simple rental (provision of a secretariat, common reception, etc.) (see also, Administrative Court 26 October 2021 n°45967C). The use of the common areas and the “Wifi” network are, according to the Court, accessories to the lease contract that do not go beyond the simple rental.
The Court then analysed whether the services related to the mail could be qualified as “any other service related to a company“. The court considered that the service in question must “actively contribute to the very statutory functioning of a company, a service without which the company could not function, as opposed to any service generally merely “useful” to the company’s activity”.
it was held that the co-working space provided and invoiced on a limited basis, for several months, a service of reception and continuation of registered mail and parcels addressed to various companies that had rented offices in its business center. Such a mail and parcel forwarding service must be considered as a company-related service within the meaning of the AML Law, insofar as it is of such a nature as to actively contribute to the statutory functioning of a company, without which the company could not function.
