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02-02-2018

Update on UBO register in the Netherlands

Introduction
On June 26, 2017 all European Union (“EU”) member states should have been compliant with the regulations prescribed in the 4th Anti-Money Laundering Directive (“AMLD4”). Under AMLD4, businesses and legal entities are required to maintain accurate and current information on the identity of their ultimate beneficial owners. Such information should be reported to a central register in the relevant member state (“UBO register”). 

The implementation of AMLD4 in Dutch legislation appeared to be at a standstill for quite some time, but the Dutch government is now moving forward. Although a draft legal framework to introduce the UBO register was presented for consultation already on March 31, 2017, only on 31 January last the Dutch government published more guidance with respect to the definition of ultimate beneficial owner (UBO). This guidance has been published for consultation purposes in an administrative measure. (“Administrative Measure”). Closing of the consultation is 28 February 2018.

It is expected that a draft bill to implement the Directive shall be presented to Parliament in June 2018. At the same time a more definitive version of the Administrative Measure is expected.

Definition UBO
On the basis of the proposed Administrative Measure, the following natural persons are in any event considered to be an UBO:

  • in case of a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) or a public company (naamloze vennootschap) (listed companies are exempted): (i) natural persons who hold, either directly or indirectly, more than 25% of the shares, voting rights or legal ownership of the respectively company, and (ii) any other natural person who is in any other way ultimately controlling the company;
  • in case of a foundation (stichting): (i) the incorporator(s), (ii) the management board member(s), (iii) the beneficiary or beneficiaries, and (iv) any other natural person who is in any other way ultimately controlling the foundation; 
  • in case of a trust: (i) the incorporator(s), (ii) the trustee or trustees, (iii) if applicable, the protector or protectors, (iv) the beneficiary or beneficiaries, and (v) any other natural person who is in any other way, either directly or indirectly, ultimately controlling the trust.
     

If resources to determine the UBO have been exhausted to no avail or if there is any doubt on who should be considered an UBO, each natural person who is part of the senior management of the respective legal entity (i.e. the natural persons involved with the day-to-day management) is considered to qualify as UBO. 

UBO register
The final legislation regarding the implementation of AMLD4 and the UBO register is expected to be submitted to the Lower House of Parliament before June 2018. From the already published draft legislation it became clear that the UBO register will be fully publicly accessible and operated under supervision of the Dutch Chamber of Commerce. The primary responsibility to register the required UBO information (such as the person details of the UBO (e.g. name, nationality, birth date and residential address) and the beneficial interest held within the respective legal entity) rests with the legal entity itself. Businesses and legal entities which are obliged to provide information regarding their UBO’s should therefore enquire and maintain accurate and adequate information. 

AMLD5
Notwithstanding the apparent slow implementation of AMLD4 by EU member states, at the end of 2017 the presidency of the European Council and the European Parliament have reached political consensus to modify AMLD4. Most striking element is that the UBO register as a general rule should become publicly accessible, with only restricted access to UBO information of a trust or a similar legal arrangement for anyone with a legitimate interest. It is further envisaged that EU member states shall automatically exchange UBO information in a digital platform. A draft proposal to change AMLD4 (“AMLD5”) has been published by the European Commission on 19 December 2017. Subject to agreement by the European Council and the European Parliament AMLD5 should be implemented by EU member states as per the end of 2019.

If you would like to receive more information or if you have any questions regarding the above please do not hesitate to contact us.

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