On 19 July 2019, the Federal Public Service of Finance published a new version of its FAQ on the register of Ultimate Beneficial Owners (UBO Register). The previous update was made on 2 April 2019. In addition to answering some technical issues, the newly updated FAQ mainly provides clarification for listed companies, associations and foundations, formalities of requests for derogations and declarations of spouses. The deadline of 30 September 2019 is maintained.
The deadline for registration of the ultimate beneficial owners (UBO’s) is maintained. The information on the UBO’s must be transmitted to the UBO Register by 30 September 2019 at the latest.
Thereafter, all modifications must be recorded within a one-month period.
2. Exemption for listed companies
Companies do not have an obligation to register their beneficial owners if they are listed on a regulated market subject to disclosure requirements consistent with EU law or subject to equivalent international standards which ensure adequate transparency of ownership information.
The updated FAQ thus now provides for an exemption for listed companies, in line with article 3 § 6 of the EU 4th Anti-money laundering directive and with its implementation by other EU countries.
3. Non-profit associations and foundations
A. Natural persons in whose interest the entity was founded or operates
Associations and foundations also have to transmit information on the (categories) of natural persons in whose main interest the entity was founded or operates.
The FAQ clarifies that general target groups can be registered. A reference to the articles of association may be sufficient.
B. Any other natural person that otherwise exercises the ultimate control over the entity
Where applicable – as a residual category –, associations and foundations also have to submit information on any other natural person that otherwise exercises the ultimate control over the entity.
This only concerns persons who do not fall within one of the other categories of beneficial owners such as natural persons having the authority to represent the entity, but whose capacity has not been published, or members acting in concert.
4. Formalities for derogation requests
The updated FAQ clarifies some aspects of the formalities for requesting a derogation to the access by the general public to the information concerning a UBO.
The request may be filed either by the UBO (or a duly appointed proxyholder) or by the legal representative of the relevant entity when it makes the registration.
A request for a derogation for exposure to disproportionate risk, risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation must be accompanied by supporting documents, such as:
- A reasoned derogation of another country with a similar register
- A conclusion of a risk analysis report of an independent third party
- A complaint filed with the police, a conviction or judgement, protective police measures
- Any other document evidencing one of the abovementioned risks.
In case of a negative decision, legal action may be initiated before the Council of State.
For minors, the derogation automatically granted will last until they reach majority.
5. Declaration of spouses
The updated FAQ sets out guidelines for UBO declarations of spouses.
For interests falling within the marital community, the UBO will, in principle, be the spouse mentioned in the share register of the company or which exercises the voting rights. If both spouses do it jointly, they must be jointly registered with an equal number of shares or voting rights.
In other cases, one should analyse which spouse exercises in practice control over the entity.
The updated FAQ document is available on the website of the Federal Public Service of Finance.
The new Code, which was published in the Official Journal on 4 April 2019, will gradually come into force as from tomorrow.
The date of entry into force of the new Code is 1 May 2019. As from this date, each newly incorporated entity will have to comply with all the provisions of the new Code.
For existing companies and associations, the general rule is that the new Code will come into force on 1 January 2020, with a final deadline for adapting the articles of association on 1 January 2024. However, existing entities may choose an early opt-in and thus, through an amendment to their articles of associations, render the new Code fully applicable as from 1 May 2019.
Also to note: the Royal Decree dated 29 April 2019 implementing the new Code has been published today. This Royal Decree merges into a single text the regulatory provisions of various existing Royal Decrees. It contains nine books and is available here.
For any query, do not hesitate to contact a member of our corporate team.
In the era of digital banking, does it still make sense to use the localisation of a bank account to settle conflicts of jurisdiction?
In its recent case “Löber”, the ECJ decided that tort claims against the issuer of a misleading prospectus may be brought before the courts of the investor’s domicile provided that his or her investment originated from a bank account localised in the same jurisdiction and that ‘other specific circumstances’ also contribute to the jurisdiction of these courts. A decision which goes against the current digital flow? Discover Thomas Derval‘s opinion on this case in the Journal de droit européen: http://bit.ly/lober-ecj (in French – reserved to subscribers).
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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It’s official: the new Belgian Code of companies and associations has been approved yesterday in its final version by the Belgian Parliament. It will be published in the official gazette in the coming weeks and will gradually come into force as from May 1st, 2019.
For an insight into the reform, please refer to a recent presentation by Paul Alain Foriers: https://bit.ly/2FQ4445.
The full text is available here: https://bit.ly/2GTGvXH For more information on how to comply with the new Code, do not hesitate to contact a member of our corporate team.
The Belgian Minister of Finance announced yesterday that the deadline for the 1st registration in the UBO register had been extended to 30 September 2019 (instead of 31 March).
For more information on this topic, please see our previous news authored by Sandrine Hirsch and Jacques Malherbe.
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.