On June 23rd, with a slight delay, the Dutch Senate approved the bill regulating the introduction of the Dutch UBO register. The effective date is set at September 27th, 2020, as of then companies, foundations and associations are required to register their beneficial owners.
What is the UBO register and what is it for?
The UBO register is a register that makes it transparent who the UBOs of an entity are. The register will become part of the trade register and will therefore be managed by the Dutch Chamber of Commerce (KvK). Enitites must register information about their UBOs themselves. Some of the information will be publicly available. The register meets the requirements of data protection of the General Data Protection Regulation (GDPR).
Who qualifies as (pseudo) UBO?
A UBO (Ultimate Beneficial Owner) is the natural person who is the ultimate beneficiary of an entity. There can be multiple UBOs within one entity. These are natural persons who directly or indirectly hold more than 25% of the shares, voting rights or ownership interest and / or exercise actual control over that entity.
Certain (large) entities usually have a multiple shareholders and therefore often have no single person with an interest of more than 25%. In those cases there is no UBO and one or more pseudo-UBOs must be designated. Pseudo-UBOs are natural persons who belong to the senior management staff, for example a statutory director at a B.V. However, a pseudo-UBO has only been designated as the last fallback option.
To whom does the registration obligation apply?
The following organizations are required to enroll their UBOs:
- N.V.s and B.V.s (with the exception of listed companies and 100% (indirect) subsidiaries);
- Foundations, associations (with full legal capacity and without full legal capacity but with a company), mutual guarantee companies, cooperatives;
- Partnerships (excluding sole proprietorships);
- European N.V.s, cooperatives and partnerships;
- Shipping companies;
Which data is visible?
The information that is registered in the UBO register can be divided into two categories, namely public information and non-public information. The difference between these two categories is that the public information is publicly available and can be viewed by everyone, while the non-public information can only be viewed by the Financial Intelligence Unit Netherlands (FIU-NL) and designated competent authorities.
Public information from the UBO:
- Month and year of birth;
- The nature and extent of the economic interest (in bandwidths of 25-50% / 50-75% / 75-100%);
Non-public information from the UBO:
- Home address;
- Day, place and country of birth;
- (Foreign) tax identification number;
- Documents from which the UBO status and the nature and scope of the interest can be derived (eg notarial deeds);
- Copy of a valid identity document;
Can the data be protected?
In exceptional cases, the UBO can submit a request to shield its (public) information to the Chamber of Commerce, amongst others if there is a risk of kidnapping, blackmail or if the UBO is underage or incapacitated. The Chamber of Commerce decides on this request. To this decision appeal can be filed.
When do you need to register the information in the UBO register?
After the UBO register comes into effect, existing entities have 18 months to register their UBO data with the Chamber of Commerce. The Chamber of Commerce will write to the entities subject to registration with the request to register the UBO data. From the moment of registration, changes to the UBOs will also have to be reported to the Chamber of Commerce. Failure to comply with the obligations is considered an economic offense and can be punishable by imprisonment from six months (violation) up to two years (crime), community service or a fourth category fine (EUR 21,750).
Would you like to know more about the new UBO legislation or do you need help registering your UBO? Our legal team is up-to-date with current laws and regulations and is happy to provide advice tailored to your situation.