Short Reads

UBO Register and Central Register of Shareholders

UBO Register and Central Register of Shareholders

UBO Register and Central Register of Shareholders

10.04.2017 NL law

In February 2016, the Minister of Finance outlined how the Ultimate Beneficial Owner (''UBO'') register (''UBO register'') will be implemented in the Netherlands. The obligation to introduce a UBO register derives from the Fourth Anti-Money Laundering Directive (2015/849/EU) (the "Directive"), which entered into force on 25 June 2015.

The Directive aims to combat crime and terrorism and encourage a strong internal market, economic prosperity and financial stability and integrity. Under the Directive, the EU Member States are obliged to include information of the UBO for all companies and other legal entities incorporated in the Member State in the UBO register. Companies and legal entities themselves will have to provide information on the UBO for the register. The Directive must be implemented in the Member States by 26 June 2017.

In July 2016, the European Commission published a proposal to amend the Directive (the ''Proposal''). The Netherlands commented on the Proposal on 9 September 2016. Although the European Commission initially proposed bringing forward the implementation period of the Directive to 1 January 2017, this plan was abandoned in the amended text of the Proposal by the European Council on 19 December 2016. On 9 March 2017 the European Parliament published a draft resolution with further amendments of the Proposal.  

The Directive outlines the minimum requirements for a UBO register. A further elaboration must take place at a national level. In the Netherlands, most provisions of the Directive will be implemented in the Prevention of Money Laundering and Terrorist Financing Act (Wet ter voorkoming van witwassen en financieren van terrorisme). There was a consultation on a draft legislative proposal to implement the Directive in July 2016, which did not include the UBO register. On 31 March 2017 the Department of Finance published for consultation a draft legislative proposal concerning the UBO register.

A UBO is a natural person who is seen as the ultimate owner or the person who controls the relevant entity (not a listed company), through a direct or indirect ownership interest of a certain percentage of the shares or the exercise of a certain percentage of the voting rights. In this context, a percentage of more than 25% serves as an indication of direct or indirect ownership. Member States may provide a lower percentage as an indication. The natural persons in senior management will be considered UBOs (also called ''pseudo-UBO'') when there is any doubt or the UBO cannot be determined under these rules. The explanatory memorandum to the draft legislative proposal clarifies that these persons will be the daily policymakers, which could include the CEO or other members of the board. A broader definition of the UBO in relation to passive non-financial entities is recommended in the Proposal, which also gives a percentage of more than 10% (instead of 25%) as an indication of direct or indirect ownership. For this reason, more UBOs must be registered for these types of entities.

The UBO register will be managed by the Chamber of Commerce (Kamer van Koophandel). It will be a public register containing the name, date of birth, nationality, and country of residence of the UBO and the nature and extent of their participation. Some of the details of the UBO will not be made public. However, law enforcement agencies are entitled to access a UBO's date and place of birth, address, SSN and tax number, type, number, date and place of issue identification document and documentation substantiating the status of the UBO.

Besides the UBO register, the Netherlands has been preparing a central register for shareholders (''CRS'') for some time. The CRS should be distinguished from the UBO register. The CRS will include information on shares and shareholders (and pledgees and usufructuaries) of private companies and non-listed public limited companies, as well as European companies and cooperatives with a registered office in the Netherlands. The information will be provided by civil law notaries. Earlier this year, the preparations for the CRS were put on hold to prioritize the development of the UBO register. However, in an adopted motion, the government has made a request to continue the preparations for the CRS. The Labour Party submitted an initial bill on 19 January 2017 proposing that the CRS is held at the Royal Notarial Assocation (Koninklijke Notariele Beroepsorganisatie). The accessibility of the register will be restricted.

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