Following the abolition of bearer shares in 2005, the anonymity of shareholders is increasingly disappearing. The time that the (family) shareholder keeps the share register in a safe and frenetically clings to the confidentiality is disappearing.
In the context of recent developments at the European level in the fight against terrorism and anti-money laundering offences, anonymity will also disappear for non-listed companies. The register of shareholders will soon be centralised to some extent in a national register, which can be consulted by the public. This may apply to your local hairdresser, an industrial family bakery, a tech-startup with a silent investor, but also a family foundation or a non-profit association.
Back in time
The requirement for a central register at national level follows from the recent European anti-money laundering directives, which are part of the fight against terrorism financing and money laundering offences. In Belgium, the central register of beneficial owners was introduced by the Law of 18 September 2017 on the prevention of money laundering and the financing of terrorism and on the restriction of the use of cash. With the Royal Decree of 30 July 2018, this central register now also took shape and a deadline was set.
The obligation to notify the ultimate beneficial owners applies to all companies, (international) non-profit associations, fiduciaries and trusts, foundations and similar legal entities, and which obligation becomes the sole responsibility of the governing corporate body.
The Law of 18 September 2017 stipulates that every natural person who ultimately owns or controls the company qualifies as an ultimate beneficial owner and must be registered with the UBO register. Also according to this Law, an interest held by a physical person of more than 25% of the voting rights or more than 25% of the shares or capital of the company, applies as an indication of a sufficient percentage of the voting rights to qualify as an ultimate beneficial owner.
But even if no one owns more than 25% shares in your company, there may be an effective interest in or control by a beneficial owner through other mechanisms (shareholder agreement, voting arrangements, etc.).
For each beneficial owner meeting the threshold at least the following must be disclosed: full name, date of birth, nationality, full address of residence, date of becoming ultimate beneficial owner, national register number, size of beneficial interest, but also the type of ultimate beneficial owner, whether or not together with other natural persons, whether or not the ultimate beneficial owner is a direct or indirect ultimate beneficial owner and, in the latter case, the intermediaries (also with full identification).
Specific – Deadline
According to the Royal Decree, which will enter into force on 31 October 2018, the required information must be communicated at the latest within one month of the date on which the information concerning the ultimate beneficial owner is known or changes. The deadline would thus be at the earliest 30 November 2018.
However, the Federal Public Service Finance states another deadline on its website and in its FAQ. A first registration of your ultimate beneficial owners can be timely done until 31 March 2019.
In preparation for this deadline, the Federal Public Service Finance provides a number of guidelines which can be found online: https://financien.belgium.be/nl/ubo-register.
Through the known E-services on the website of the Federal Public Service Finance you can already log in on the UBO application https://eservices.minfin.fgov.be/mym-portal/public/citizen/external_services, and consult the companies who have already registered.
Thus, you can already register the required information regarding your ultimate beneficial owners online.
Who can consult?
Each authority, entities subject to obligations of vigilance over their clients, but also every citizen.
The consultation (with the exception of the authorities) will entail administrative costs and it will only be possible to search on the basis of the company name or the company identification number. It will therefore not be possible to search for a person’s name in order to obtain an overview of all the participations. In addition, not all information included in the UBO register will be disclosed.
Only if it can be demonstrated that access to the information would lead to exposure to a risk of fraud, abduction, blackmail, violence or intimidation, or if he or she is a minor or incapacitated, an exception may be decided on a case-by-case basis.
Failure to do so may result in fines of between EUR 250 and EUR 50 000, borne by the party responsible for providing information.
Bart Brunet – Sara Burm