As of 31 October 2018, every company, association, foundation, non-profit association or trust incorporated in Belgium will be obliged to register all UBO’s into the new UBO register. UBO's are the natural persons who are the ultimate owner, or who have control over the company, association, foundation, non-profit association or trust. UBO is short for "Ultimate Beneficial Owners”.
For companies, these are (in principle) the physical persons who own directly and/or indirectly (cumulated) 25% or more of the voting rights, the shares or the capital of the company. Also natural persons who control a company in another way (e.g. through arrangements in a shareholders' agreement) are ultimate beneficiaries. If it is not possible to identify the ultimate beneficial owner(s) based on the above, the members of the senior management are considered to be the ultimate beneficial owners.
All such entities (i.e. the “responsible for providing information”) will have to provide the relevant information through the UBO-register ultimately by 31 March 2019. If they fail to do so, the Minister of Finance may impose an administrative fine of EUR 250 to EUR 50,000. The UBO-register has recently been made accessible to all those responsible for providing the infromation.
Our lawyers will be happy to assist you in identifying and correctly categorizing the UBO’s within your company, collecting the correct information and correctly registering them in the UBO-register. We can also advise you on the compulsory communication to the UBO’s themselves.
If you, the directors within your company or the UBO’s of your company would like additional information or guidance on this matter, please contact us via email@example.com or your usual contact person within Astrea.
Below you will find an overview of the most frequently asked questions.
1. Who is considered as ultimate beneficial owner?
The following persons are considered as ultimate beneficial owners of companies:
1. 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.
2. 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);
3. 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).
The following persons are considered as ultimate beneficial owners of (international) non-profit associations and foundations:
1. The members of the board of directors;
2. The persons appointed as entitled representatives;
3. The persons in charge of the daily management;
4. The founders of the foundation;
5. The natural persons or, if these persons are not yet been determined, the category of natural persons in whose main interest the (international) non-profit-making association or foundation was set up or operates;
6. Any other natural person exercising ultimate control over the (international) association or foundation by other means.
The following persons are considered as ultimate beneficial owners in the case of trusts, fiduciaries and other similar legal arrangements:
1. The settlor;
2. The trustee(s) or trustee(s);
3. The protector, if any;
4. The beneficiaries, or where the individuals benefiting from the trust have yet to be determined, the category of persons in whose main interest the fiduciary or trust was set up or operates;
5. Any other natural person who, by reason of direct or indirect ownership or by other means, ultimately controls the fiduciary or trust.
2. Who must provide the information?
The following legal entities are required to provide the relevant information to the UBO register: companies, (international) non-profit associations, foundations, trusts, fiduciaries and other comparable legal entities. In practice, it will be the relevant administrative bodies who will be responsible.
3. Can the responsible person for providing information mandate a third party to complete the register in his place?
Yes, two options are possible:
- the "internal mandate" or the Role Management Administration ("RMA"): the legal representative of a those responsible for providing information gives this role to one of the members within the legal entity. This enables such power of attorney to fill in the register instead of the legal representative, in his name and on his behalf; or
- the "external mandate": the legal representative gives a mandate to an external third party to fill in the information on its behalf. Astrea is happy to provide you with these services.
4. Which information must be provided?
Detailed data, the scope of the information obligation for companies* is very extensive. The following information is mandatory:
- surname and first name;
- date, month and year of birth;
- country of residence;
- full residential address;
- date on which he/she became the beneficial owner;
- national registry or identification number of the Crossroads Bank for Social Security or if unavailable, any similar identifier given by the State in which he/she resides or of which he/she is a citizen;
- the category or categories of beneficial owner to which he/she belongs;
- whether he/she fulfils the conditions for qualification as beneficial owner individually or together with other persons;
- whether he/she is a direct or indirect beneficial owner;
- if the beneficial owner is an indirect beneficial owner, the number of intermediaries with full identification details; and
- the extent of the ultimate interest.
*The rules for (international) non-profit associations, foundations, trusts and fiduciaries and comparable legal entities are to a large extent similar, but might differ on certain points.
5. How should the information be communicated?
Electronically, via the online platform of the FPS Finance www.MyMinFin.be, you will be able to log in with an e-ID and communicate the necessary information. If necessary, the communication of information can also be carried out by an authorised representative. If desired, Astrea can assist you in fulfilling these obligations.
6. When should the information be communicated?
Quickly, from the entry into force of the Royal Decree (31 October 2018), all parties responsible for providing information (mainly directors and managers) will in principle have one month to comply with the new rules. However, the administration has already announced that the administrative body has to transfer all the information about the ultimate beneficial owners to the UBO register no later than 31 March 2019. Afterwards, this will have to be done with every change, and will have to be updated at least once a year.
7. Are there exceptions?
Yes, in exceptional circumstances, the beneficial owner may request the Treasury Administration to restrict access to all or part of his/her information in the register. However, the beneficial owner must be able to demonstrate that such access exposes him/her to a disproportionate risk or a risk of fraud, abduction, blackmail, extortion, harassment, violence or intimidation. Restrictions on access to information may also be requested where the beneficial owner is a minor or otherwise legally incapacitated.
8. Who has access to the UBO-register?
(Almost) Everyone. The information in the UBO-register will be accessible to:
- the competent authorities (including the tax authorities);
- the entities that must comply with their obligations of vigilance towards their clients as imposed by the anti-money laundering legislation (e.g. financial institutions, banks, accounting firms, lawyers, etc.);
- each citizen (subject to payment of an administrative cost (to be determined by the Minister of Finance).
However, the third category - "every citizen" - will have limited access to information on the ultimate beneficial owner (first name, date of birth, full address of residence and national register number or equivalent of the beneficial owner will not be publicly accessible).
However, the register will always be consulted without the company concerned or the beneficial owner being informed.
9. Are there sanctions?
Yes, there are three possible infringements, each with an administrative and/or criminal sanction:
- failure to collect and maintain the required information
- failure to register the information to the UBO-register (in a timely manner); and
- the provision of incomplete or incorrect information to the UBO-register.
The Minister of Finance may impose an administrative fine of 250 EUR to 50,000 EUR on the directors and, where applicable, on one or more members of the legal administrative body or of the management committee and on the persons participating in the effective management of the company.
If the first or second infringement is detected, the directors of the company are also punished with a fine of EUR 50 to EUR 5,000 (increased by the multiplayer, eventually of EUR 400 to EUR 40,000).
10. How to be prepared?
As follows, on its website, the FPS Finance already provides the following tips to prepare you for the information obligations:
- to provide a legal or an authorised representative with an E-ID card who can fill in all the information mentioned in the Royal Decree via the online platform MyMinFin on behalf of your organisation;
- to identify the category, to which your beneficial owner belongs;
- to obtain accurate and detailed information on the beneficial owners of your organisation and on all legal entities used by your beneficial owners to control your organisation;
- to have evidence that your information is adequate, accurate and up to date;
- to implemented procedures within your organisation so that every change of information on your beneficial owners is transmitted to the UBO register within the month.
Astrea will be happy to guide you through these new regulations.