UBO-Register: Royal Decree regarding the operating modes has been published
With the Royal Decree of 30 July 2018 regarding the operating modes of the UBO-Register (published in the Belgian Official Gazette on 14 August 2018) the UBO-register will be in effect as from the 31st of October 2018. Concretely, this means that all reporting agents will have to comply with these new formalities within one month of the entry into force of this new regulation.
Who is the UBO?
The UBO or ‘Ultimate Beneficial Owner’ is the natural person who ultimately owns or controls a certain entity. The Law arranges several categories of ultimate beneficial owners, based on the type of entity.
The identification of the ultimate beneficial owner of a company is done according to a cascade-system. A UBO of a company can be considered:
1.a natural person who has a direct or indirect (through another company) ownership of at least 25% of the shares or owns at least 25% of the voting rights of the company;
2.a natural person who has control over the company through other means such as a shareholders agreement;
3.in the event that neither of the above mentioned categories apply to one or more UBOs, the directors of the company have to identify themselves as a UBO.
For foundations and not-for-profit associations, not only the founders of a foundation and the natural persons in whose main interest the association or foundation has been set up or operates are considered as a UBO, but also the directors, all natural persons charged with day-to-day management or any other natural person exercising ultimate control over the foundation or association by other means.
Trusts and other similar legal entities have comparable qualification standards. More specifically, the settlor, trustee, the protector (if any), the class of persons in whose main interest the legal arrangement or entity is set up or operates and, finally, any other natural person exercising ultimate control over the trust by means of (in)direct ownership or by other means will be considered as UBO of a trust.
Who has to upload which (personal) information?
Directors of companies, not-for-profit associations and foundations/the trustees of trusts are obliged to declare the following information to the UBO-Register: first and last name of the ultimate beneficial owner; date of birth; nationality, country of residence; full address; date on which the person became a ultimate beneficial owner;, national registration number.
The following information has to be declared specifically by companies:
- the category to which he/she belongs (i.e. shareholder, manager or a person who exercises similar control, senior management);
- or a person who separately or together with another person respond to one of the above categories;
- he/she qualifies as a direct or indirect ultimate beneficial owner;
- and in case it concerns an indirect ultimate beneficial owner: the amount of intermediaries and, for each of them, their full identity with at least the name, founding date, name of the entity, legal form, the address of the entity’s registered office and the company registration number (or any other similar means of identification issued by the state where the intermediary is registered);
- the amount of ultimate economic interests held by the UBO, more specifically the percentage of the shares or voting rights in the company (or the weighted percentage in case of indirect ownership).
The above information should be timely updated (namely, within one month following the moment the information of an ultimate beneficiary is known or has changed) and be reported to the UBO-Register. Directors or trustees who don’t comply with these new regulations will risk a fine from 250 to a maximum of 50.000 EUR (to be multiplied by 8) for each violation.
Is the UBO-Register soon accessible by every person?
Unlike not-for-profit associations, foundations, trusts or other similar legal entities, the UBO-Register of companies is accessible by every person without any written request and even without showing a legitimate interest. If you, as an ultimate beneficial owner do not agree with the above, you can request confidentiality of your data. However, such confidentiality can only be granted in exceptional circumstances. While claiming the confidentiality of your data, you will have to prove that you are being exposed to a disproportionate risk, such as the risk of fraud, kidnapping, extortion or blackmail. Limited access of the UBO-data can also be obtained if the beneficiary is a minor or is legally incapacitated.
Practically: how can u prepare?
Companies, not-for-profit associations, foundations, trusts and other legal entities have time until 30 November 2018 to gather and upload the required information in to the UBO-register. We expect that the Belgian Administration will soon provide more guidelines about the practical implementation on its website.
In anticipation it is advisable to already take the following preparatory measures:
- collect adequate and extensive information on the ultimate beneficiaries of your organisation and of all other legal entities of which your ultimate beneficiaries make use to exercise control over your organization;
- collect documentary evidence demonstrating that the information is sufficient, accurate and actual;
- set up procedures within your organization to ensure that any change to the information regarding your ultimate beneficiaries can be communicated to the UBO-Register within one month;
- ensure that a legal representative or proxy holder with an e-ID can supplement the required information in the name of the organization on the electronic platform MyMinFin.