• UBO register: shareholders no longer anonymous

UBO register: shareholders no longer anonymous

27 September 2018

[Update 21.05.2019]
 

The Royal Decree of 30 July 2018 on the operating terms of the UBO register introduces far-reaching information requirements for companies, national and international NPOs, etc. with regard to the identity of their ultimate beneficiaries.

UBO register

The UBO register is a centralised database of natural persons who own or exercise control over companies, trusts, national and international NPOs, foundations and legal entities comparable to trusts or fiduciaries.

The purpose of the UBO register is to gain understanding of ownership structures of the above-mentioned legal entities to combat money laundering and terrorist financing more efficiently.
 

Operating terms of the UBO register

A Royal Decree (Royal Decree of 30/07/2018, Belgian Official Gazette of 14/08/2018) now determines which information must be communicated, who has access to the UBO register and which sanctions apply in the event of non-compliance. Therefore companies, trusts, NPOs, foundations and structures comparable to fiduciaries and trusts will henceforth bear greater responsibility as reporting agents.

The Royal Decree took effect on 31 October 2018. The management body must provide the obligatory information on the identity of the ultimate beneficiaries for the first time no later than 30 September 2019 (and not 31 March 2019 as first planned). The information must be updated at least annually and changes must be communicated by the management body within one month after the ultimate beneficiary concerned is known or changed.

It is therefore important that companies and NPOs prepare in good time to collect all necessary information about their ultimate beneficiaries (who, which category, information to be communicated, etc.). For companies and NPOs where changes are regularly made by the ultimate beneficiaries, it is also advisable to provide for an internal procedure that ensures that the changes can be communicated to the UBO register in good time (within one month).
 

Contact

Our experts at BDO legal will be happy to assist you with the analysis of your obligations resulting from the UBO register and with preparing the communication of the required information so that you are able to complete all formalities in good time. You can contact them by e-mail: l[email protected].
 

Frequently asked questions

Who is required to collect and communicate this information?

  1. The law imposes on all companies established in Belgium, (international) non-profit associations and foundations operating in Belgium, as well as trusts or other similar legal arrangements the obligation to:
    • collect and retain adequate, accurate and up-to-date information on the persons who are their beneficial owners, and detailed data on the economic interests held by them;
    • forward this information to the UBO register; and
    • inform their beneficial owners of this (in the context of the regulations on the processing of personal data).
  2. In practice, the management body of these legal entities (directors, managers, etc.) will be responsible for ensuring compliance with these obligations.
     

Who is considered to be a beneficial owner?

For companies, the following persons are considered to be beneficial owners:

  1. the natural person(s) who, directly or indirectly, own(s) a sufficient percentage of the voting rights or a sufficient holding in the capital of that company, including through bearer shareholdings; the possession by a natural person of more than 25% of the voting rights or more than 25% of the shares or the capital of the company is an indication of a sufficient percentage of voting rights or of a sufficient direct holding; in the case of indirect control, the percentage to be taken into consideration is the weighted percentage;
  2. the natural person(s) who exercise control of this company by other means (shareholders’ agreement, right to appoint members of the Board of Directors, veto right, etc.);
  3. the natural person(s) holding the position of senior managing official, if, after having exhausted all possible means, and provided there are no grounds for suspicion, no person referred to above is identified, or if there is any doubt that the person(s) identified are the beneficial owners; in the case of a residual category, the identification of such a beneficial owner categories must be duly documented and well-founded (processes undertaken for the identification of the first two categories, resulting from research carried out, etc.).

For non-profit associations, international non-profit associations and foundations, the following persons are considered to be beneficial owners:

  1. the directors;
  2. the persons authorised to represent the association;
  3. the persons responsible for the day-to-day management of the non-profit association or international non-profit association or foundation;
  4. the founders of a foundation;
  5. the natural persons or, where these persons have yet to be determined, the class of natural persons in whose main interest the non-profit association or international non-profit association or foundation was set up or operates;
  6. any other natural person exercising ultimate control by other means over the non-profit association or international non-profit association or foundation.
     

What information must be communicated to the UBO register?

The following information must be communicated concerning each beneficial owner of any company, non-profit association, international non-profit association or foundation:

  1. surname and first name;
  2. date of birth;
  3. nationality(ies);
  4. full residential address;
  5. the date on which the person became a beneficial owner of the legal entity concerned;
  6. identification number in the National Register of Natural Persons or the Crossroads Bank for Social Security and, where applicable, any similar identifier provided by the state where the person resides or of which he or she is a national;
  7. the category(ies) of beneficial owner into which the person falls;
  8. whether it is an isolated or grouped beneficial owner.

In addition, the following additional information must be provided for each beneficial owner of a company:

  1. whether he/she/it is a direct or indirect beneficial owner;
  2. in the case of an indirect beneficial owner, the number of intermediaries and for each of them, his/her/its complete identification details (including at least the name, the date of incorporation, the business name, the legal form, the address of its registered office and its business number, and, where applicable, any other similar identifier issued by the state in which the intermediary is registered);
  3. the extent of the effective interest held in the company (i.e. in particular the percentage of shares or voting rights, which must be established in a weighted manner in the case of an indirect beneficial owner).
     

How should this information be communicated?

Information is communicated to the UBO register exclusively via the MyMinFin or MyMinFin Pro online portal.
 

Can a mandate be given to a third party to communicate this information?

  1. The directors or managers of the legal entity concerned (company, non-profit association, etc.) do not necessarily have to communicate the information relating to the beneficial owners to the UBO register themselves.
  2. They have two options:
    • they may give an internal mandate (or Role Management Administration, RMA) to a person within their company (or non-profit association, etc.) to carry out these formalities; or
    • they may give an external mandate to a third party (chartered accountant, tax adviser, etc.) to carry them out.
  3. BDO can assist you if you wish. If so, please contact your account manager.
     

When must this information be communicated?

  1. Information relating to beneficial owners must be communicated for the first time to the UBO register no later than 30 September 2019.
  2. Thereafter, this information must be updated at least once a year, it being specified that the management bodies (directors, managers, etc.) are required to forward to the UBO register any information relating to beneficial owners within one month of the date on which it is known or changed.
     

Are there sanctions?

In the event of non-compliance with the provisions concerning the identification of and communication of information relating to beneficial owners, the management bodies (directors, managers, etc.) of the legal entities concerned risk facing two types of sanctions:

  • an administrative fine of between EUR 250 and EUR 50,000; and
  • a criminal fine of between EUR 50 and EUR 5,000 (to be multiplied by the additional decimals, i.e. a fine of between EUR 400 and EUR 40,000).
     

Who will have access to the UBO register?

  1. The data in the UBO register relating to the beneficial owners of companies will be accessible to:
    • the competent authorities (in particular the tax authority);
    • companies and natural persons who need to know this information in order to be able to comply with their vigilance obligations with regard to their customers (banks, lawyers, notaries, chartered accountants, etc.); and
    • any member of the general public, it being specified that these persons will only have access to certain information concerning beneficial owners (and in particular not to their residential address or their identification number in the National Register of Natural Persons or the Crossroads Bank for Social Security).
  2. The same applies to the data in the UBO register relating to beneficial owners of non-profit associations, international non-profit associations and foundations (as well as of trusts), except that members of the general public will not have access to it, but certain information will be accessible to:
    • any person or organisation demonstrating a legitimate interest; and
    • any person who submits a written request to the Treasury Administration, for non-profit associations, international non-profit associations and foundations (as well as trusts) that control a company, a non-profit association, international non-profit association or a foundation.
  3. In exceptional cases, the Treasury Administration may, at the request of a beneficial owner, limit access to all or part of the information concerning him/her/it in the UBO register.