28 Sep The UBO Register
As per 27 September 2020, many organizations are obligated to register their UBOs (Ultimate Beneficial Owners) with the Trade Register of the Chamber of Commerce (the “UBO Register”). However, what exactly does the UBO Register entail and what does the implementation of this new UBO register mean for you? Here you will find the most important questions and answers about the UBO Register.
1. What does the UBO Register entail?
The UBO Register is part of the Trade Register of the Chamber of Commerce. As from 27 September 2020, certain organizations are obligated to register their UBO(s) in the UBO Register.
2. Who qualifies as an UBO?
UBO means the private individual who ultimately owns or controls an organization.
3. Which organizations need to register their UBOs in the Trade Register?
These are the following organizations (the “Registration Mandatory Entities“):
- private company (BV) and public limited company (NV) (not being listed companies);
- European NV (Societas Europea, SE);
- European Economic Interest Grouping (EESV);
- European Cooperative Society (Societas Cooperativa Europaea, SCE);
- mutual guarantee society (OWM);
- association with full legal capacity (established by notarial deed);
- association without full legal capacity that runs a business (and also pays taxes);
- limited partnership (CV);
- general partnership (VOF); and
- shipping company.
Entities such as a sole proprietorship, an owners’ association (VVE) and legal entities under formation are therefore not subject to UBO registration. Foreign legal entities with their headquarters or a branch office in the Netherlands do not have to register their UBOs either. However, UBOs of foreign companies incorporated in the EU will have to do so in the UBO register of the country of incorporation.
4. Who will be designated as UBO of the aforementioned most commonly used Registration Mandatory Entities?
The private company (BV), the public limited company (NV), the SE, the SCE, the cooperative, the foundation, the association and the OWM are legal entities. The EESV, the partnership, the CV and the VOF are private partnerships. This distinction is also important for the rest of this article.
5. What if no private individual can be designated as an UBO based on the shares, voting rights or ownership interest, who should be registered as an UBO?
In that case, the pseudo UBO must be registered.
For legal entities, all directors of the legal entity qualify as pseudo UBO. It does not matter whether or not the directors are authorized to act. The UBO Register makes no distinction between non-executive directors and executive directors in a one tier board.
In the case of private partnerships, all partners qualify as pseudo UBO, with the exception of partners in the event of a cash injection.
6. Is this any different if the pseudo UBO is a legal entity (e.g. a management holding company) and not a private individual?
In the event that the management board of a legal entity is constituted by another legal entity, that managing legal entity cannot qualify as a pseudo UBO. Only private individuals can qualify as (pseudo) UBO. If a legal entity is a managing director, then any private individual managing that legal entity shall also be the pseudo UBO of the legal entity that is obliged to register its UBOs.
7. Which details of the (pseudo) UBO must be registered with the Trade Register and will be visible?
This includes at least the following details (the “UBO details”):
- if issued, the citizen service number (BSN) and – if issued by the place of residence of the UBO – a foreign tax identification number (TIN);
- the (first and last) name;
- the birth month and birth year;
- the state of residence;
- the nationality;
- the day of birth, the place of birth and country of birth;
- the residential address;
- the date on which he or she became UBO;
- the nature and extent of the economic interest held by the UBO in the Registration Mandatory Entity. The ranges are from more than 25% to 50%, from 50% to 75% and from 75% to 100%. No amounts of money will be provided.
8. Which documents regarding the UBO must be filed with the Trade Register?
This concerns copies of documents showing the UBO details (the “UBO documents“).
For the UBO details mentioned under 7a up to and including 7f, one can think of a copy of the passport.
For the UBO details mentioned under 7h above, the articles of association, extracts from the shareholders’ register, the partnership agreement or the agreement underlying a VOF or CV can be used.
9. Who can consult the UBO Register for the UBO details and UBO documents?
After online registration and payment of a small fee, anyone has access to the following UBO details:
- (first and last) name;
- month and year of birth;
- state of residence, nationality; and
- the nature and extent of the economic interest held by the UBO.
The other UBO details, i.e. the day, place, country of birth, BSN (if applicable) and TIN (if applicable) and the UBO documents are only accessible to the competent authorities and the Dutch Financial Intelligence Unit (Financiële Inlichtingen Eenheid).
Competent authorities should be understood to mean: The Dutch Central Bank (de Nederlandse Bank), the Dutch Authority for Financial Markets (Autoriteit Financiële Markten), the Financial Supervision Office (Bureau Financieel Toezicht), the Wwft Supervisory Office (Bureau Toezicht Wwft), the Dutch Gambling Authority (Kansspelautoriteit), the deans of the Dutch Bar Association (Orde van Advocaten) in their role as supervisors of the Wwft, the Dutch Tax Authorities (Belastingdienst), the Justice Service (Dienst Justis), the Bibob Office (Bureau Bibob), the Dutch National Police (Nationale Politie), the Dutch Public Prosecutor’s Office (Openbaar Ministerie), the Dutch General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst), the Dutch Military Intelligence and Security Service (Militaire Inlichtingen- en Veiligheidsdienst), the Royal Dutch Marechaussee (Koninklijke Marechaussee), the Fiscal Intelligence and Investigation Service (FIOD), the Social Affairs and Employment Inspectorate (Inspectie Sociale Zaken en Werkgelegenheid | ISZW-DO), the Intelligence and Investigation Service of the Dutch Food and Consumer Product Safety Authority (Inlichtingen en opsporingsdienst van de Nederlandse Voedsel- en Warenautoriteit | NVWA-IOD), the Environment and Transport Inspectorate (Inspectie Leefomgeving en Transport | ILT/IOD), the National Investigation Service (Rijksrecherche) and the Economic Enforcement Bureau (Bureau Economische Handhaving).
10. Who is responsible for registration of the UBO details with the Trade Register?
Anyone to which the Registration Mandatory Entity belongs, any managing director of this entity or – if there is none – the person in charge of its daily management (the “Registration Responsible Person“).
11. By which time at the latest must the Registration Responsible Person register the UBO details and deposit the UBO documents with the Trade Register?
Registration mandatory entities established after 27 September 2020 must do so within a period of two week at the latest, which period begins one week before the start of business operations and ends one week after the start of business operations.
Registration mandatory entities that are already registered with the Trade Register on 27 September 2020 must register the UBO details and deposit the UBO documents no later than 18 months from that date, i.e. no later than 26 March 2022. This also applies to registration mandatory entities that were deregistered from the Trade Register before 27 September 2020 due to leaving the Netherlands.
12. What happens if the Registration Responsible Person fails to register the UBO details with the Trade Register or fails to do so on time?
This can result in criminal (imprisonment, community service or a fine of up to EUR 21,750) and administrative sanctions.
13. Is it possible to shield certain UBO details in the Trade Register?
At the request of the UBO, the Chamber of Commerce may shield certain UBO details, but only in exceptional circumstances. In that case, the UBO will have to prove that at least one of the following situations is involved: (1) exposure to a disproportionate risk, (2) a risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation, (3) minority or (4) other kind of legal incapacity.
If you have any questions with regard to this matter, please contact Paul Hendriks (+31 6 30157994) or Peter Kruit (+31 6 29359486).