Foreward by Andrew Chilvers
When the 5th Anti-Money Laundering Directive was introduced into law by the UK and EU in January 2020, for many professionals it was a much needed addition to legislation that would significantly help business transparency and combat money laundering. In essence, it was good for business and for public and professional confidence.
All jurisdictions signing up to the 5th Directive will build and maintain UBO registries that will be publicly available at any time. UBO registries will also be set up for bank accounts and trusts, although these latter two will not be publicly available but be accessed by the relevant authority such as financial intelligence units and legal advisors looking into money laundering. Investigative journalists who can show a legitimate interest in the case can also have access, which is vital if another Panama Papers (see below) is to be uncovered. Across the UK and EU national UBO registers will be set to connect through a central European platform by April 2021.
Please provide a brief overview of the UBO Register in your jurisdiction and its history?
In the Netherlands, the UBO register is part of the Dutch Trade Register (“Kamer van Koophandel”). In general, natural persons qualify as UBO if they (in) directly own or control more than 25% of the shares in an entity or are able to exercise effective control over an entity. If no person qualifies as UBO on the basis of the above criteria, all the directors of the entity will be regarded as a (pseudo) UBO.
How can your firm ensure your clients are fully compliant with the new / existing requirements?
The Dutch legislation is quite comprehensive and for registrations it is requested to compile a set of supporting documents.
We assist our clients and their (foreign) advisers with the registrations. We can also check the register for them if they wish to extract information on potential trading partners.
Furthermore, we have reserved a separate section on our website where relevant details about the Dutch UBO register can be found. This section is continuously updated with new developments.
What changes can we expect to see emerging, are any new proposals expected?
On the basis of AMLD5 a separate register for trusts and similar legal arrangements will be introduced (date of implementation is not yet known).
What other information might be relevant?
Entities incorporated before September 27, 2020 may opt to register their UBO(s) earlier than the deadline of March 27, 2022. This could be considered to meet the information request of certain third parties (e.g. banks, business partners etc.).
The UBO register for legal entities is publicly accessible, also for persons without a legitimate interest. However, certain personal data is protected and is only accessible for the authorities (e.g. tax identification number, day of birth, place of birth, country of birth, residential address, documentation substantiating the nature and extent of the interest held by UBO).
Non-compliance with the registration obligations is subject to various sanctions (such as imprisonment for a maximum of six months, a fine of a maximum of €20,500 or community service).