The date has been postponed a number of times, but 30 September is D-Day. No later than this date, directors and managers of companies, not-for-profit associations and foundations must register the beneficial owners of their entities in the centralised register of beneficial owners (also known as the UBO register) of the Belgian Federal Public Service Finance.
What is the UBO register?
The UBO register stems from European regulations and is part of the fight against money laundering and the financing of terrorism. The register identifies the so-called beneficial owners (hereinafter referred to as "UBOs") of legal entities, i.e. the natural persons who own or control or draw an economic advantage from these entities. This transparency measure concerns companies, (international) not-for-profit associations, foundations, trusts and fiduciaries and similar legal entities.
Who is required to register?
Companies, (international) not-for-profit associations, foundations and trusts incorporated or founded in Belgium must identify their UBOs and register certain information relating to these individuals via the MyMinFin portal. This obligation applies to directors and managers, who can easily mandate a third party (lawyers, accountants, etc.) to do so online.
However, the obligation does not stop there, because the information in the UBO register must always be adequate, accurate and kept up to date. Any change (e.g. change of address, change in the extent of ownership interest, etc.) must always be communicated within a month. In addition, the situation of the UBOs must be confirmed annually and, if necessary, adjusted.
Failure to comply with this obligation to register and update the information can be punished by administrative fines between 250 and 50,000 euros. These can be imposed on the directors, the executive committee or other persons who are responsible for the effective management. In addition, the members of the management body may be subject to criminal fines of 50 up to 5,000 euros.
Who is UBO…?
The term 'UBO' has a broad scope. It not only refers to any natural person who individually meets the requirements of the definition ("single UBO"), but also to any natural person who, in law or in fact, acts in consent with other persons to exercise joint control over the entity ("grouped UBO"). The control can be exercised either directly or indirectly through one or more intermediate legal entities.
...of a company?
The following natural persons are considered to be UBOs of a company:
1. any natural person who holds, directly or indirectly, more than 25% of the voting rights or ownership interest in the capital of the company; and
2. any natural person who, alone or together with others, controls the company by other means (e.g. by means of a shareholders' agreement or through the power to appoint or dismiss the majority of its directors);
3. only if no UBO has been identified in the two categories above, the persons belonging to senior management (CEO, chairman of the executive committee, etc.).
...of an (international) not-for-profit association or foundation?
For (international) not-for-profit associations and foundations, all of the following natural persons qualify as UBOs:
1. The members of the board of directors;
2. The persons who are entitled to represent the association/ foundation;
3. The persons in charge of the daily management;
4. For foundations: the founders;
5. The natural persons or, when those persons have yet to be determined, the category of natural persons in whose main interest it was established or operates (e.g. hospital patients, who may be designated as a group);
6. Any other natural person exercising ultimate control by other means (e.g. members of the general meeting who have concluded a voting agreement).
What information should be recorded?
The following personal identification information of the UBO must be registered: name, first name, date of birth, nationality, full residence address and national register number or any similar foreign identifier. The date on which the person has become a UBO and whether it is a single or a grouped UBO must also be registered. In addition, for companies, the scope of the ultimate interest must be specified, as well as whether it concerns a direct or indirect UBO.
What happens to the information in the register?
The General Administration of the Treasury manages the UBO register and informs the natural persons who are registered, after which they can consult their information.
Also other competent authorities, including the tax authorities, and entities subject to a duty of vigilance towards their clients in the framework of the anti-money laundering legislation (banks, lawyers, notaries, accountants, etc.) have access to the register.
Individuals can also consult the register. In the case of companies, every individual has access to a wide range of information against payment without the need to prove a legitimate interest. In the case of (international) not-for-profit associations and foundations, the access is more limited, as a legitimate interest in connection with the fight against money laundering and terrorism is required. For privacy reasons, the first name, full date of birth, residence address and national register number may not be consulted. In exceptional cases, the UBO may request that all information is kept confidential for individuals. In such case, it is required that the access to of this information would expose the UBO to a disproportionate risk, a risk of fraud, kidnapping, blackmail, extortion, intimidation or violence. The information relating to underage or incapacitated UBOs is hidden automatically.
The information will be kept as long as the company, association or foundation exists and for a period of ten years thereafter.
If you have any questions relating to the UBO identification and the completion of the UBO register, please contact the CURIA CORPORATE and NON-PROFIT team. The contacts are:
Yvette Verleisdonk (Yvette.Verleisdonk@Curia.be)
Sarah Verschaeve (Sarah.Verschaeve@Curia.be)