Belgium: The UBO Register Is About To Go Live: Summary Of The Obligations Of Belgian Companies

Last Updated: 21 September 2018
Article by Nanyi Kaluma and Michaël Fernandez-Bertier

As a result of the implementation of the 4th (and, in part, 5th) EU Anti-Money Laundering Directive(s) into Belgian law, companies incorporated in Belgium and other legal entities are required to identify and collect information on their beneficial owners (UBOs) and record these information in the Belgian online beneficial owners register (the UBO Register).

The UBO Register, which will soon be operational, is operated by a department of the General Treasury Administration of the FPS Finance (the Treasury Administration). The Treasury Administration maintains a UBO Register website, which contains relevant information and is updated from time to time: https://finance.belgium.be/en/register-beneficial-owners.

Recording information in the UBO Register will have to be made by 30 November 2018 (see below (4)) via the online platform MyMinFin. Log-in will require the use of a BE ID-card and pin code.

You will find below a summary of the relevant requirements on how Belgian companies must complete the UBO Register. Note that the same obligation applies to (international) non-profit associations and foundations, trusts and fiducies and similar legal entities. They are however not discussed in this alert.

Note that the UBO Register-related obligations can be found in the following pieces of legislation:

  • Articles 73-75, 4, 27° and 132 para. 6 of the Act of 18 September 2017 on the prevention of money laundering and terrorist financing and on the restriction of the use of cash (the AML Act);
  • The Royal Decree of 30 July 2018 on the operating procedures of the UBO Register, published in the Belgian Gazette of 14 August 2018 and entering into force on 31 October 2018 (the Royal Decree); and
  • Articles 14/1 and 14/2 of the Companies Code and articles 58/11 and 58/12 of Act of 27 June 1921 on non-profit-making associations, non-profit-making international associations and foundations (see also articles 1:29 to 1:32 of the draft new Companies and Associations Code which modifies the existing classification of legal entities).

(1) Who must identify their UBOs?

Any company incorporated in Belgium is required to identify its UBOs and file that information in the UBO Register.

(2) Who should be recorded as UBOs of a Belgian company?

The following three categories of individuals qualify as UBOs of a company. Note that every company must always identify the two first categories of UBOs (which are cumulative) whereas the third one is only a residual category:

  • The individual(s) who ultimately own(s) or control(s) the company through direct or indirect ownership of a sufficient percentage of the shares or voting rights in the company, including through bearer shares.
    Note that:

    • An individual holding more than 25% of the shares or voting rights in the company shall be an indication of direct ownership;
    • A shareholding held by a company that is under the control of (an) individual(s) or by multiple companies that are under the control of the same individual(s), of more than 25% of the shares or voting rights in the company, shall be an indication of indirect ownership;
  • The individual(s) exercising control over the company via other means.

    Eg: the individuals effectively controlling the company or holding the power to appoint members of the administrative, management or supervisory bodies of the company, a shareholders' agreement, veto rights...;
  • The individual(s) holding the position of senior managing official(s).

    Eg: the CEO, the Chairman of the management committee...

    Note that this is a residual category that only applies if, after having exhausted all other means of identification, and provided there are no grounds for suspicion, no individuals indicated in the two above categories could be identified or if it is not certain that the individuals identified are UBOs. Being a residual category, the identification of senior managing officials as UBOs must be duly documented and justified (eg, measures and actions undertaken to identify the two first categories, results of said measures and actions taken).

(3) What UBO information must the company collect and record in the UBO Register?

The following information must be provided on each UBO to the UBO Register:

  • The last name and first name;
  • The date of birth (day/month/year);
  • The citizenship(s);
  • The country of residence;
  • The complete address of residence;
  • The date at which they became an UBO of the Company;
  • The national registry number, crossroads bank for social security number, or similar identifier issued by the State in which they reside or of which they are a citizen;
  • The relevant category of UBO they belong to (see the three categories listed above (2));
  • Whether they are a direct or an indirect UBO:

    • If they are an indirect UBO: the number of intermediaries and for each of them their complete identification, including at least the name, the date of incorporation, the legal name, the legal form, the address of the registered office, the crossroads bank for enterprises number and, where applicable, any other similar identifier issued by the State in which the intermediary is registered;
  • Whether they are an isolated UBO or jointly with other individuals;
  • The extent of the interest held (eg, the weighted percentage of shares or voting rights held in the company).

Note that companies must provide a number of information to their UBOs for the purpose of data protection, including but not limited to the fact that the UBO information is being recorded in the Register and that UBOs have the right to access their information and request the Treasury Administration to modify or delete any inaccurate information.

In addition, the Treasury Administration will inform each UBO that they are recorded in the Register and of the information recorded in the UBO Register in their name.

(4) Who must complete the UBO Register on behalf of the company and when?

The directors of the company are responsible for filing the relevant information in the UBO Register on behalf of the company.

They must do so within 1 month from the moment the information regarding the UBO is known or has changed.

Therefore, since the Royal Decree enters into force on 31 October 2018, directors have until 30 November 2018 to record for the first time the UBO information in the UBO Register.

(5) What are the sanctions attached to the failure to comply with the above obligations?

The following breaches carry out administrative (A) / criminal (C) sanctions:

  • Failing to collect and hold UBO information (A/C);
  • Failing to provide the information to the UBO Register (A/C);
  • Providing incomplete/incorrect information to the UBO Register (A).

(A) The Minister of Finance can impose an administrative fine of EUR 250 to EUR 50,000 on directors of the company and, where appropriate, on members of their statutory body, their management committee, and persons involved in their senior management in the absence of a management committee, who are responsible for any of the above breaches.

(C) The directors of the company are subject to a criminal fine of EUR 400 to EUR 40,000 in the event of a relevant breach.

According to our information, the authorities should take a lenient approach at first regarding sanctions since this is a new obligation that applies to companies and their directors.

(6) Who can access the UBO Register?

The UBO Register of companies can be accessed by:

  • Competent authorities (including tax authorities);
  • Obliged entities that must comply with the AML Act; and
  • Any member of the public (elke burger/tout membre du grand public).

    • Members of the public may only conduct (paying) searches on the basis of the company's CBE number or name. In addition, they may only access limited UBO information, ie the last name, month/year of birth, citizenship(s), country of residence, and nature and extent of interest held by the UBO.

Note that UBOs may ask the Treasury Administration to limit access to their information to competent authorities and obliged entities that are credit/financial institutions or notaries in exceptional circumstances, ie where the UBO:

  • Would face disproportionate risk, fraud, harassment, kidnapping, blackmailing, extortion, violence or threats from unrestricted access being granted to such information; or
  • Is minor of age or incapacitated.

Also note that companies and their UBOs will not be informed of searches made on them in the UBO Register.

(7) What about data retention?

The UBO information recorded in the UBO Register will be kept for a period of 10 years after the date the relevant company lost its legal personality or definitively ceased its activities.

In addition, the Treasury Administration will keep any search conducted on the UBO Register for a period of 10 years.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions