An important update of the UBO Register FAQ document has been published by the Federal Public Service Finance on 2 April 2019. It provides a number of clarifications on the scope of the regulations, notably with respect to the notion of senior managing official, the situation in case of a usufruct / bare ownership, co-ownership, shareholders’ agreements… It also confirms that UBOs will have the right to know who consults their data. The updated FAQ document is available here: http://bit.ly/QandA-ubo
The Belgian anti-money laundering regulations (the Law of 18 September 2017 and the Royal Decree of 30 July 2018) require all companies, non-profit-making organisation and foundations, as well as trusts, fiduciaries and other similar legal entities managed from Belgium, which are the responsible “information providers”, to obtain and hold adequate, accurate and up to date information on their “beneficial owners” (UBO) and to transmit it to the UBO Register, managed by the General Administration of the Treasury.
2) DEFINITION OF UBO
UBO are individuals who directly or indirectly exercise effective control over information providers. There are different categories of UBO depending on the type of control exercised and on the type of information provider.
For companies, the following are considered as beneficial owners:
- Individual(s) who directly or indirectly has/have ownership of a sufficient percentage of voting rights or own sufficient shares in the company (an indication of a sufficient percentage is the possession, directly or via ownership interest held by one or more companies, of more than 25% of voting rights or of shareholding);
- Individual(s) who control via other means (such as via a shareholders’ agreement) ;
- In the case no individual(s) is/are found under the first two categories, the senior manager.
Others persons qualify as UBO for non-profit-making organisations, foundations, trusts, fiduciaries or other similar legal entities. If your entity corresponds to one of those, we will provide you with further details.
3) INFORMATION TO PROVIDE
As mentioned in the Royal Decree, the following information regarding each beneficial owner must be communicated to the UBO Register by the company which is the information provider:
- last name, first name, date of birth (day/month/year), citizenship(s), country of residence, complete address of permanent residence, date on which they became the UBO of the company, national registry number or registration number with the Crossroads-Bank for Companies (or overseas equivalent),
- the relevant category of UBO to which he/she belongs,
- if he/she is a direct or indirect UBO (via one or more other entities),
- if the individual(s) meets the criteria alone or in coordination with others,
- for indirect beneficial owners, full identification of each of the intermediary entities is required,
- the percentage of shares or voting rights owned and,
- in case of indirect holding or control, the percentage of shares or weighted voting rights held in the company.
4) ACCESS TO THE REGISTER
The UBO Register is an online register accessible on the FPS Finance website.
UBO Register data are accessible not only to the competent authorities and obliged entities (notably the Ministry of Finance, the tax authorities, the Belgian Financial Intelligence Processing Unit (CTIF), the police, the National Bank of Belgium, the FSMA, company auditors, accountants, lawyers, notaries, bailiffs, etc.), but also, for companies, to all members of the “general public”, in line with the increased transparency principle enshrined in the 5th Anti-Money Laundering directive.
However, those persons will not have access to the first name, the exact date of birth, the complete address of residence, the national registry number or equivalent of the beneficial owners.
All consultations of the register made by those persons will be recorded and kept for a period of 10 years.
The data held in the register will also be kept for a period of 10 years after the date of loss of legal personality of the information provider or the date on which it ceased its activities.
5) REQUEST FOF DEROGATION
A request for derogation can be made via the UBO Register online platform. In this case, access for the general public to the information is suspended until the General Administration of the Treasury grants or declines to accept the derogation.
In principle, a derogation may only by granted under exceptional circumstances, expressed as follows under in the directive:
“in the event the beneficial owner concerned demonstrates that this access exposes him/her to disproportionate risk, to risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation, or in the event the beneficial owner is a minor or incapacitated”.
A specific request may also be made directly via the General Administration of the Treasury.
Supporting documents which evidence the derogation request must be attached to the official request.
The different entities must transmit the information to the UBO Register before 30 September 2019.
Administrative or criminal fines will apply in case of non-compliance by companies and more particularly by the directors of their obligations. The fines range between 250 EUR and 50,000 EUR.
Thereafter, all modifications must be recorded within a one month period.
Moreover, the information recorded in the Register must be confirmed annually by the information providers. The companies are required to establish a procedure which ensures it is possible to make information available and to keep up to date and correct information, clearly identifying their beneficial owners.
Companies are required to take the following measures:
- Set up internal procedures to facilitate the collection of the requested information and communication of any potential changes relating to it;
- Identify the beneficial owners and their corresponding category(ies), and where necessary compile the documents testifying to the veracity of the information communicated (e.g.: a copy of an identity card, a shareholder register, a notarial deed, articles of association of the intermediary company in case of indirect ownership).
- Appoint the legal representative or an external representative with an E-ID card who will be responsible for providing the information listed in the Royal Decree via MyMinFin on behalf of the information provider. In the scenario an external representative is chosen, it may be either an internal agent to the information provider or an external agent (e.g. an accountant, a legal advisor, a natural or legal person).
Practical information is available on the website of the Federal Public Service Finance, particularly under the FAQ document.
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Le colloque « Le droit du procès civil – Etat actuel et analyse des réformes à venir » a attiré plus de 300 participants ce lundi 28 janvier à l’ULB.
La déformalisation de l’acte juridictionnel et le régime des nullités par Fanny Laune
Incertitude concernant les conditions de recevabilité de l’appel incident et actualités en matière de délai d’appel par Marc Baetens-Spetschinsky
Ce colloque s’est tenu à l’occasion de la parution du volume 2 du Précis « Droit du Procès civil » (Anthémis), un outil résolument orienté sur la pratique essentiel pour tout praticien de la procédure, auquel Fanny Laune et Marc Baetens-Spetschinsky ont contribué.
The FPS Economy has just appointed, for their legal expertise, Fernand de Visscher as President and Emmanuel Cornu as a member of the Industrial Property section of the Council for Intellectual Property.
The Council for Intellectual Property is an advisory body made up of experts and representatives of various sectors concerned with the intellectual property. Its main mission is to provide the Minister responsible for intellectual property with advice on any matter relating to intellectual property, in particular in the law-making process.
Its president and members are appointed for a term of four years.
A number of amendments to the draft law were proposed at the Parliament’s plenary session on 18 December 2018. A new opinion from the Council of State is expected soon.
For an outline of the main changes vis-a-vis the existing regulations, you may refer to the slides prepared by Paul Alain Foriers, Partner in our Corporate M&A department and one of the four legal experts appointed by the Minister of Justice:
La réforme du droit des sociétés – Quelques questions importantes (available in French only).
On 19 December 2018, the Council of the EU and the Parliament reached an agreement on the proposal for a directive on “preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures”. The main objective of the directive is to enhance the rescue culture across the EU. To do so, each Member State will be required to introduce into its substantive law effective preventive restructuring frameworks in order to help debtors experiencing financial difficulties to restructure at an early stage, with the objective to avoid insolvency and to improve the return for the creditors.
Debtors who negotiate a restructuring plan with their creditors will benefit from a stay of individual enforcement actions. National laws may organise a full moratorium suspending all enforcement actions against the debtors by all its creditors or a moratorium limited to one or more individual creditors, for a period of up to four months, which can be extended to up to 12 months by a judicial or administrative court’s decision provided certain conditions are met. Judicial or administrative authorities will have the right to lift the stay if it becomes apparent that the majority creditors do not support the continuation of the negotiations or at the request of the debtor or the restructuring practitioner.
During the moratorium period, the debtor’s obligation to file for insolvency will be suspended, and the creditors shall equally be prevented to file for the opening of insolvency procedures against the debtor. In addition, the creditors will be prevented to refuse to perform, terminate, accelerate or amend in any other way the contractual agreement to the detriment of the debtor.
Restructuring plans and cram-down mechanisms
A majority of creditors in all creditor classes must vote in favour of the plan in order for the plan to be adopted and to bind dissenting creditors (cram-down). Member States may determine the majority voting requirements for the adoption of a restructuring plan, which may not be higher than 75 per cent in the amount of claims or interests in each class.
If the necessary majority is not reached in all classes of creditors, the plan may still be adopted by a judicial or administrative authority if certain conditions are met. The plan must be supported by at least one affected class of creditors, and the dissenting classes must not be unfairly prejudiced under the plan (cross-class cram-down). In particular, the plan must comply with the so-called “absolute priority rule”, i.e. the requirement that a dissenting class of creditors is paid in full before a more junior class to a subordinate class receiving anything under the plan.
Workers’ rights may not be affected by the preventive restructuring procedure.
Restructuring privilege and super senior financing
The directive offers strong protection to new and interim financing. These financings may not be declared null and void in a subsequent insolvency proceeding, except in case of fraud and their grantors will be immune from any civil, administrative and criminal liability in the context of subsequent insolvency. Also, the Member States may grant a priority right of payment to the grantors of new or interim financing that will rank at least senior to ordinary unsecured claims (super senior financing).
Court order and appointment of a restructuring practitioner
It will not be necessary to have a court order to open the restructuring process which may remain informal as long as the rights of third parties are not affected. The directive tends to limit the involvement of judicial or administrative authorities where it is necessary and proportionate. Also, the appointment of a restructuring practitioner will not be mandatory in all cases, but only in limited situations determined by national law such as situations where the debtor benefits from a general stay of individual enforcement actions and where the restructuring plan needs to be confirmed by a judicial or administrative authority by means of a cross-class cram down (see below).
As long as no restructuring practitioner is appointed, the debtor will remain in control of its assets, at least partially, and of the day-to-day operation of the business.
Duties of companies’ directors
Member States will be required to implement rules on duties of directors in insolvency proceedings that will be taken into account to assess their potential liability. It concerns the requirement to take immediate steps to minimise the loss for creditors, workers, shareholders and other stakeholders, to have due regards to the interests of creditors and stakeholders, to take reasonable steps to avoid insolvency and to avoid deliberate or grossly negligent conduct that threatens the viability of the business.
The directive contains measures that promote a second chance for entrepreneurs acting in good faith, including the right to be fully discharged of their debts. In the Member States where full discharge is conditional upon a partial repayment of debt, such repayment obligation will need to be based on the individual situation of the entrepreneur and proportionate to his or her disposable income over the discharge period which shall not be longer than three years.
Entry into force and impact on current Belgian insolvency law
The directive will be formally adopted after the pending linguistic review and published in the Official Journal. It will enter into force on the 20th day following its publication on the Official Journal. The Member States will have two years to implement the directive from the date of its entry into force.
The directive will be of minimum harmonisation. The Member States will have extensive flexibility to adapt the new framework to their domestic insolvency regulation which may go further than the new EU rules.
It is interesting to note that in the draft bill of 20 July 2017 (which became the law of 11 August 2017 which added a new book XX in the Belgian Economic Code), the Belgian legislator had intended to implement a “pre-pack bankruptcy”, which was supposed to give the debtor the opportunity to “prepare” its bankruptcy out of court, with discretion and no publicity. The objective was to allow him to find better alternatives to the bankruptcy (notably via the transfer of his activities with the assistance of a “pre-trustee”). However, this part of the reform has eventually been abandoned.
One can notice that Belgian insolvency procedures are currently characterised by a high level of intervention of the courts, which usually appoint judicial representatives to assist the debtor in the different stages of the procedure. Yet, one of the objectives of the directive is precisely to promote out of court solutions and to limit the involvement of judicial and administrative authorities.
Therefore, and even if the directive gives the Member States large flexibility for its implementation, the Belgian legislator will likely need to noticeably amend not only its insolvency regulation but also its general philosophy. One can thus expect another significant reform of the subject matter in the next two years. We will, of course, monitor this closely.
Finally, the directive will let an important part of substantive law untouched, including the ranking of claims. It is, therefore, only a first step towards a harmonised EU insolvency framework.
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