The Royal Decree of 14 August 2018 (the “Royal Decree”), which will enter into force on 31 October 2018, defines the regulatory framework for the new central register of beneficial ownership (the “UBO Register”). All Belgian companies and other entities will be required to communicate information in relation to their ultimate beneficial owner(s) for inclusion in the UBO Register.
Scope
Pursuant to the Royal Decree, all Belgian companies (including listed companies) and other entities (e.g., not-for-profit organisations, foundations and trust and trust-like arrangements) will be required to communicate information in relation to their ultimate beneficial owner(s) to the UBO Register.
The following categories of individuals are considered to be ultimate beneficial owner(s) of a company (“UBOs”):
- individual(s) who (in)directly hold(s) a sufficient percentage of the share or voting rights or ownership interests in that company (the Royal Decree provides that 25% will be considered to be a “sufficient percentage”);
- individual(s) who control(s) the company through other means (e.g., a private individual who has the power to appoint or remove a majority of the members of the administrative, management or supervisory body of that company); and
- to the extent, after due inquiry, no individuals have been identified under (i) or (ii), or in case it is doubtful that the individual(s) identified qualify as ultimate beneficial owner(s), the individual(s) who hold the senior managing positions are to be reported as UBOs.
Information to be Provided
The following information in respect of each UBO will have to be provided to the UBO Register:
- name and first name;
- date of birth;
- nationality;
- address;
- date on which he or she first qualified as UBO of the company;
- whether they are an isolated UBO or acting in concert with other individuals;
- identification number in the Belgian National Registry (or similar identification number in the country of residence/origin);
- whether he or she is a direct or indirect UBO, and in the latter case, the company details of all intermediaries (including, at least the legal name, date of incorporation, trading name, legal form, address of the registered seat, company number or, where applicable, any other similar identifier issued by the country in which such intermediary is registered); and
- the nature and size of the beneficial interest.
Timing and Means of Communication
Companies will be required to communicate the information set forth above to the UBO Register for the first time by 30 November 2018. The company will subsequently be required to update this information at least once a year and in any case within one month after it has become aware of any change.
As the Treasury still has to provide technical guidance on the practical implementation of the Royal Decree, it is not yet clear how the registration of the information will occur in practice.
Access
The UBO Register can be accessed by (i) specific public administrations (including, tax authorities and the anti-money laundering task force); (ii) entities that are required to perform due diligence obligations on their customers pursuant to anti-money laundering legislation; and (iii) the general public (it being understood that members of the general public will only be allowed to perform a search in the UBO Register on the basis of the name or registration number of a company and will only be able to gain access to limited information).
Information in the UBO Register can be made inaccessible by the Treasury if disclosure is liable to entail a serious risk of fraud, kidnapping, blackmail, violence or intimidation. Access is also restricted if the UBO is a minor or is incapacitated.
Enforcement
Failure to comply with the obligation to obtain and hold information of their UBOs may result in criminal fines for the directors of the company ranging between EUR 400 and EUR 40,000. Failure to communicate such information timely to the UBO Register may entail administrative sanctions ranging between EUR 250 and EUR 50,000 for the directors.
By Amaury de Borchgrave and Hannelore Matthys
