The Belgian AML Act does not provide an exemption for listed companies regarding the registration of their UBO.
Directive (EU) 2015/849 of 20 May 2015 (“Fourth AML Directive”) requires all EU Member States to set up a national register in which legal entities like companies must file accurate and up to date information about their Ultimate Beneficial Owner (“UBO”).
The Fourth AML Directive excludes listed companies from this filing obligation provided they are “subject to disclosure requirements consistent with Union law or subject to equivalent international standards which ensure adequate transparency of ownership information”. However, this exemption was not retained in the Belgian AML Act of 18 September 2017 (“Belgian AML Act”) which incorporates the Fourth AML Directive into Belgian law.
As a consequence, foreign listed companies with a Belgian subsidiary could be requested by their Belgian subsidiaries to give information on their UBO, even though they might be exempt from such obligation in their home country.
Under Belgian law, the UBO is any natural person who:
- i) ultimately owns or controls the company through direct or indirect ownership of a sufficient percentage of the shares or voting rights or ownership interest, including through bearer shareholdings (with ownership of more than 25% of the shares / voting rights / ownership interest being regarded as a sufficient percentage);
- (ii) exercises control over the company through other means.
If it is not possible to identify any UBO, after exhausting all means or there are still doubts about his or her UBO-ship, the natural person(s) who are part of senior management of the company (directors, managers or officers) will be regarded as the company’s UBOs by default.
In accordance with the explanatory memorandum to the Belgian AML Act the term senior management will in practice normally refer to the CEO or the Chair of the managing committee (directiecomité / comité de direction).
Please note that in case of a Belgian subsidiary of a foreign listed company, it is the senior management of the Belgian subsidiary company that could qualify as UBO by default, not the senior management of the foreign listed parent company itself.
For an elaborate Q&A regarding the Belgian UBO register see our earlier post Ulimate Beneficial Owners Register operation as of today - Compliance required by 30 September 2019