The UBO-register bill has been adopted by the Senate | UBO-registration in the Netherlands is approaching

Earlier we informed you that the UBO-register should have entered into effect as from 10 January 2020. This deadline has not been met due to the amount of time that was required to prepare the bill (among other reasons). The implementation of the UBO-register has now made some significant progress, as a result of which the UBO-registration is quickly approaching. The UBO-register bill was already adopted by the House of Representatives on 10 December 2019, but has now also been approved by the Senate. The effective date of the bill will be 27 September 2020.

Hereinafter we will briefly outline the main aspects of the UBO-register in the Netherlands. For a more detailed overview we kindly refer to our contribution from 10 April 2019.

Which entities are subject to registration?
The following entities that are incorporated or established under the laws of the Netherlands must register their UBO-information in the UBO-register:

• private companies with limited liability (besloten vennootschap met beperkte aansprakelijkheid, i.e. B.V.) and public companies (naamloze vennootschap, i.e. N.V.) excluding those with a stock exchange listing which are subjected to certain publication requirements and their 100% direct and indirect subsidiaries;
• European public companies (SE) and European cooperative companies (SCE), having their registered office in the Netherlands;
• foundations (stichtingen), associations (verenigingen), cooperatives (coöperaties) and mutual insurance associations (onderlinge waarborgmaatschappijen);
• partnerships (maatschappen), commercial partnerships (vennootschappen onder firma, i.e. V.O.F.), limited partnerships (commanditaire vennootschappen, i.e. C.V.), European economic interest groupings (EESV) and shipping companies (rederij).

Mutual funds (fondsen voor gemene rekening) are excluded from this UBO-register, however another bill (introducing a UBO-register dedicated for trusts) has been published for public consultation on 17 April 2020. Mutual funds fall within the scope of that register.
 
Who qualifies as UBO?
The UBO is the natural person who ultimately owns or controls the entity. There can be more than one UBO. At least the following natural persons are considered to be a UBO:

• in case of a private company with limited liability (B.V.) or a public company (N.V.): natural persons who own or control the entity (i) through holding directly or indirectly more than 25% of the shares, voting rights or ownership interest in the entity, or (ii) by other means, such as the right to appoint the majority of the members of the entity’s management board or being able to de facto control the entity;
• in case of a foundation, association, cooperative or mutual insurance association: natural persons who own or control the entity (i) through holding directly or indirectly more than 25% of the ownership interest in the 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 the entity or (iii) being able to de facto control the entity;
• in case of a partnership, commercial partnership (V.O.F.), limited partnership (C.V.) or shipping company: natural persons who own or control the entity (i) through holding directly or indirectly more than 25% of the ownership interest in the entity, (ii) being able to cast directly or indirectly more than 25% of the votes required to amend the agreement that governs the entity, 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 the entity.

This enumeration is purely exemplative and not exhaustive. If resources to determine the UBO have been exhausted to no avail or if there is any doubt whether a person is actually a UBO, entities must register their directors as UBO and partnerships must register their partners as UBO (in case of a limited partnership the limited partner is excluded in this respect). This is known as a "pseudo-UBO".

What information needs to be registered?
The following information regarding an UBO shall be publicly available in the UBO-register:

• name;
• month and year of birth;
• country of residence;
• nationality; and
• nature and extent of the UBO’s economic interest.

In relation to the nature and extent of the UBO’s economic interest, only a range (>25% through 50% (exclusive), 50% through 75% (exclusive), or 75% through 100% (inclusive)) needs to be registered. In other words, no absolute numbers are registered.

Further, the Dutch Financial Intelligence Unit (FIU Nederland) and other competent authorities (which are all subject to an obligation of confidentiality) shall in addition have access to the following information:

• day, place, and country of birth;
• residential address;
• if issued: the citizen service number (burgerservicenummer, BSN) and foreign tax identification number (fiscaal identiteitsnummer, TIN);
• copies of the documents which are used to verify the UBO’s identity; and
• copies of the documents substantiating why the UBO qualifies as such and showing the nature and extent of the UBO’s economic interest.

Which steps need to be taken once the bill has entered into effect?
As soon as the bill has entered into effect, existing entities will have 18 months to submit their relevant UBO-information to the Chamber of Commerce. It is therefore recommended that entities already start collecting their UBO-information and keep it up-to-date. The Chamber of Commerce will notify all entities that are required to submit UBO-information during the 18-month period. Newly established entities must submit their relevant UBO-information immediately upon their registration with the Chamber of Commerce.
 
BUREN can assist you with any question regarding the obligations imposed by the bill. Among others, we can assist you with the UBO identification process, with filing UBO-information (or amending registered UBO-information) and also requesting restricted access to the UBO-information due to security/privacy reasons. Please get in touch with one of the advisers of our Private Clients & UBO register Desk.

To BUREN's Private Clients & UBO Desk