DUTCH UBO REGISTER - DATE ANNOUNCED

As we have informed you earlier in our news alerts (on June 18, 2018 and April 16, 2016), the long expected UBO register is soon to be implemented in the Netherlands. The legislative proposal on this was finally submitted to the Dutch Parliament on April 4, 2019. The register is to be implemented in the Netherlands following the (Fifth AMLD) EU Directive 2018/843 of the European Parliament and the Council dd 30 May 2018, amending the (Fourth AMLD) EU Directive 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing.
It is the plan to have the UBO register as a part of the Trade Register of the Dutch Chamber of Commerce. UBO information will be generally publicly available, with certain restrictions.

When will the Dutch UBO register come into force?
The UBO register should be implemented on January 10th, 2020.
Following this date, those subject for registering UBOs (companies that already exist at that time) will have a maximum of 18 months (up until 10 July 2021) to take care of the necessary registration procedures. Companies that will be incorporated after the date when the legislative proposal comes into force, will be obliged to register information on their UBOs at the moment of incorporation.

Who would be subject to registration?

Private companies with limited liability (BVs) and public companies (NVs) with exception of those listed on regulated markets or 100% subsidiaries of such entities;

European public companies (SEs);

European economic interest groupings (EESVs);

European cooperative companies (SCEs);

Cooperatives and mutual insurance associations;

Associations with full legal capacity and associations with limited legal capacity operating a business;

Foundations;

All types of partnerships;

Shipping companies.

Who is considered to be a UBO?

The UBO is a natural person who ultimately owns or controls a legal entity. There can be several UBOs within a structure. The following criteria for different entity types are applied:

natural persons who own or control a company, through holding directly or indirectly more than 25% of the shares, voting rights or ownership interest of the respective company, which includes holders of bearer shares - for private companies with limited liability (B.V.) and public companies (N.V.);

natural persons who own or control a legal entity, through (i) holding directly or indirectly more than 25% of the ownership interest in that legal entity, (ii) being able to cast directly or indirectly more than 25% of the votes required to adopt a resolution to amend the articles of association of that legal entity, or (iii) being able to de facto control that legal entity – for other legal entities (excluding churches);

natural persons who own or control a legal entity, through (i) holding directly or indirectly more than 25% of the ownership interest in the partnership, (ii) being able to cast directly or indirectly more than 25% of the votes required to amend the agreement that governs the partnership, or in the matter of implementation of that agreement other than by acts of administration, in so far in the agreement prescribes adopting resolutions by a majority of votes cast, or (iii) being able to de facto control that partnership – for partnerships.

N.B. Whenever a UBO cannot be determined under the set of rules above or when there is doubt regarding the identity of the UBO, the senior management of a legal entity will be considered UBOs (categorized as the so-called "pseudo-UBO").
Following Dutch law it is the practice to treat the natural person(s) who are managing a legal entity as pseudo-UBO(s).

What information would need to be registered?The UBO register in the Netherlands will be providing the following information on a UBO:

name;

month and year of birth;

nationality;

country of residence;

nature and extent of the beneficial interest held by the UBO (no exact figures, only fixed ranges, i.e. 25%-50%, 50%-75% or 75%-100%).

N.B. Competent authorities, such as Financial Intelligence Unit (FIU) and others will have access to a broader scope of information (would not be available for those gathering KYC information, researchers, journalists, civil society organizations):

date, place and country of birth;

full address;

citizen service number (BSN) and/or foreign tax identification number (TIN), whichever is issued;

copy of a document identifying personality of a UBO;

copy of a document identifying the fact that this person is the UBO and the nature and extent of the beneficial interest held.

Who is responsible for registering information on UBOs and what are the sanctions for non-compliance?
Those who own or those who are charged with the daily business of an entity are obliged to register the information on UBOs in the UBO register.
Non-compliance with the regulations may lead to administrative or criminal sanctions for either/both the owner and/or the management.

Limitations on public access

Basic information on UBO will be publicly available.

However, extensive details on natural persons will only be available to competent state authorities (tax authorities, financial intelligence authorities, prosecutor’s office, etc.)

It might be the case, that a UBO may request the Dutch Chamber of Commerce to impose limitations on publicly available information due to the following risks foreseen (at least one of them):

exposure to disproportionate risks;

a risk of fraud, kidnapping, blackmailing, extorsion, bullying, violence or intimidation;

the UBO is a minor;

legal incapacity of the UBO for other reasons.

The parties requesting information from the Dutch Chamber of Commerce shall be obliged to register themselves with the Chamber and pay a fee for obtaining information.

How long would the information on UBO be kept?
Information on UBOs shall be available for at least 5 years but for no longer than 10 years after deregistration of a legal entity. The Dutch government intends to opt for a 10 year period.
Further on, each UBO register within the EU shall be linked to one another.