On February 10, 2016 the Minister of Finance, Mr. Dijsselbloem, sent a letter to the Lower House, also on behalf of the ministers of Public Safety and Justice and Economic Affairs, about the implementation of the UBO register. Pursuant to the Fourth European Anti-Money Laundering Directive, the Netherlands must have this register ready no later than June 26, 2017.
Persons who qualify as a UBO
A UBO (ultimate beneficial owner) is an individual who has formal or effective control of an entity. Indicators of this control are a certain percentage of ownership, shares and/or voting rights, but also, for example, the right to dismiss directors/managers. In his letter, the Minister states that an interest of more than 25% leads, in principle, to qualification as a UBO. If it cannot be established that an entity has a UBO, then as a last resort an individual belonging to the entity’s executive staff can be designated as the UBO.
Entities of which the UBOs are registered
In the letter to Parliament, the Minister states that the Dutch UBO register will as much as possible be in line with the entities listed in the 2007 Commercial Register Act. It is expected that entities, which by virtue of this Act must register with the Trade Register of the Chamber of Commerce, will also have to register their UBO in the UBO register. Such entities also explicitly include entities without legal personality and entities incorporated under foreign law.
Access to the UBO Register
In the letter to Parliament, the Minister announced that the Dutch UBO register will, in principle, be a public register, i.e. it will be accessible to the public. However, the following privacy safeguards will be implemented:
- Each user of the register will be registered.
- A fee will be charged for access.
- Users other than specifically designated authorities will only be able to access a limited amount of information about the UBO.
- Where there is a risk of kidnapping, blackmail, violence or intimidation for example, these risks will be assessed on a case-by-case basis and the possibility of shielding certain information will be considered.
The limited amount of information that users (other than specifically designated authorities) will, in any case, have access to are the name, month and year of birth, nationality, state of residence and the type and size of the economic interest of the UBO. In addition to these unrestricted accessible details, the day of birth, place of birth, country of birth, Citizen Service Number (or foreign tax identification number), identity document details and documentation related to the interest of the UBO must also be included in the register. Only designated authorities will be able to access the latter information.
Provision of information to the UBO register
In principle, entities that are registered in the UBO register are responsible for providing the necessary information to the register. UBOs must cooperate with this. Further, entities with an obligation to register have a duty to notify the administrator of the register if they discover ‘discrepancies’ between information they are aware of and the information in the register. Certain authorities can also pass on information to the register.
The Chamber of Commerce has indicated that it is prepared to accept responsibility for administering the UBO register.
It appears that the UBO register will have a broad application in the Netherlands. We would be pleased to discuss with you how best to protect your privacy within the framework of this new regulation. Please contact your designated advisor at Meijburg & Co or one of the advisors listed in this article.