UBO REGISTER: LEGAL FRAMEWORK
The law of 18 September 2017 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and limitations to the use of cash (hereafter the “Law”) provides for the creation in Belgium of a centralised register of beneficial owners (the English acronym “UBO” stands for “Ultimate Beneficial Owner”) (hereafter “The UBO register”).
The Law implements the European Directive 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, (“4th AML Directive”), which requires the Member States to take legal and regulatory measures to the effect that:
- Companies and other entities incorporated within their territory are required to obtain and hold adequate, accurate and current information on their beneficial owners;
- A centralised register storing information on the beneficial owners of these entities is established in order to facilitate access to this information.
Therefore, the Law provides for the obligation (1) for the companies, a(i)sbl and foundations to collect and hold adequate, accurate and current information on their beneficial owners and (2) for the administrators to transmit this information within the month and by electronic means to the UBO register.
WHO SHOULD BE RECORDED AS A BENEFICIAL OWNER?
The Law identifies various categories of beneficial owners depending on the legal entity to which they belong. Three types of legal entities are identified by the Law, namely companies, a(i)sbl and foundations as well as trusts and other similar entities.
The following persons are considered as beneficial owners of companies:
- The natural person(s) who has/have direct or indirect ownership of a sufficient percentage of the voting rights or ownership interest in that entity, including through bearer shareholdings.
A shareholding of 25 % plus one share or an ownership interest of more than 25 % in the customer held by a natural person shall be an indication of direct ownership or sufficient percentage of voting rights. In case of indirect ownership, the percentage to be taken into account is the weighted percentage.
- The natural person(s) who control(s) the company by any other means (e.g. shareholders' agreement, the power to appoint members of the management board, veto right);
- The natural person(s) who hold(s) the position of senior managing official(s), if, after having exhausted all other means of identification, and provided there are no grounds for suspicion, none of the aforementioned persons is identified or if it is not sure that the person(s) identified is/are the beneficial owner(s). Being a residual category, the identification of a beneficial owner must be duly documented and justified (e.g. measures and actions undertaken to identify the two first categories, results of said measures and actions).
The following persons are considered as beneficial owners of a(i)sbl and foundations:
- Persons entitled to represent the a(i)sbl;
- Persons in charge of the daily management of the a(i)sbl or the foundation;
- The foundation’s founders;
- The natural persons or, when those persons have yet to be determined, the class of persons in whose main interest the legal arrangement or entity is set up or operates;
- Any other natural person exercising ultimate control over the a(i)sbl or the foundation by other means.
The following persons are considered as beneficial owners of the trusts and other similar legal arrangements:
- The settlor;
- The trustee(s);
- The protector;
- The beneficiaries, or where the individuals benefiting from the trust have yet to be determined, the class of persons in whose main interest the trust is set up or operates;
- Any other natural person exercising ultimate control over the trust by means of direct or indirect ownership or by other means.
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