Dutch UBO Register: obligations as per 27 September 2020

As per 27 September 2020, many Dutch organisations are required to register their Ultimate Beneficial Owners ("UBO's") with the new Dutch UBO register (the "UBO Register") maintained by the Dutch Chamber of Commerce (Kamer van Koophandel).

This can have a number of consequences for you, and your businesses. We aim to inform you on the most important aspects of the UBO Register, as well as answer any questions you may already have.

Background

The Act in respect of the Implementation of the Dutch UBO-Register has been passed on 23 June 2020. It was drawn up in response to the Fourth and Fifth Anti-Money Laundering Directives of the European Union. These Directives force all EU member states to implement a UBO-Register. The UBO Register aims to provide transparency through a central and public registration of UBO's to prevent money laundering and terrorist financing.

What is a UBO?

A UBO is a natural person who ultimately owns or controls a Dutch legal entity, partnership or church. The following criteria apply for the determination who can be considered to be a UBO:

• if the organisation is a Dutch private company with limited liability (B.V.) or limited liability company (N.V.): a natural person who (i) directly or indirectly holds more than 25% of the shares, voting rights, or ownership interest in the company, or (ii) has the ultimate control over the company through other means (i.e. is authorised to appoint or dismiss more than half of the management board or supervisory board members);
• if the organisation is a Dutch foundation (stichting), association (vereniging) or co-operative (coöperatie): a natural person who (i) owns directly or indirectly more than 25% of the ownership interest; (ii) can exercise directly or indirectly more than 25% of voting rights in respect of an amendment of the articles of association; or (iii) can exercise ultimate control over the legal entity;
• if the organisation is a Dutch limited partnership (vof, maatschap or commanditaire vennootschap): a natural person who (i) owns directly or indirectly more than 25% of the ownership interest; (ii) can exercise directly or indirectly more than 25% of voting rights in respect of an amendment of the partnership agreement; or (iii) can exercise ultimate control over the partnership; or
• if the organisation is a Dutch church (kerkgenootschap): a natural person who is designated in the church's statute as legal successor in case of the church's dissolution.

Given the above criteria, it may well be that an organisation has more than one UBO. In such case, each UBO must be registered.

If, with respect to an organisation, none of the above requirements leads to the qualification of a natural person as UBO, the members of the management board (in case of companies with limited liability, foundations, churches, associations and co-operatives), or the general partners (in case of limited partnerships), respectively, will be considered to be the UBO's (so called "pseudo-UBO's") and will need to be registered in the UBO Register.

Which organisations are obliged to register their UBO's?

The registration obligation applies to the following organisations:

• private companies with limited liability (B.V.'s);
• limited liability companies (N.V.'s);
• associations (verenigingen);
• mutual guarantee societies (onderlinge waarborgmaatschappijen);
• cooperatives (coöperaties);
• professional partnerships (maatschappen);
• general partnerships (vof's);
• limited partnerships (commanditaire vennootschappen);
• shipping companies (rederijen);
• Societas Europea (SE's);
• European Cooperative Societies (SCEs);
• European Economic Interest Groupings (EESV's); and
• churches (kerkgenootschappen).

No registration obligation applies to:

• one man businesses (eenmanszaken);
• listed companies and their 100% (direct or indirect) subsidiaries;
• associations with limited legal personality that do not run a business;
• legal persons created under public law (publiekrechtelijke rechtspersonen); or
• foreign entities that hold a branch in the Netherlands

New registration obligation for partnerships that do not carry out an enterprise in the Netherlands

Please note that as per 27 September 2020, partnerships that do not carry out an enterprise in the Netherlands will become subject to the obligation of registration in the Dutch trade register. As per the same moment, such partnerships will also become subject to the obligation to register their UBO's in the UBO Register.

What information is to be registered with the Dutch Chamber of Commerce and what information is publicly accessible?

The following information in respect of each UBO will have to be registered and will be made publicly accessible:

• full name;
• month of birth;
• year of birth;
• state of residence;
• nationality; and
• nature and size of the interest held.

For each UBO the following additional information will also need to be registered but can only be accessed by the Netherlands Financial Intelligence Unit (FIU-Nederland) and other competent authorities, such as the tax authorities, the Dutch Fiscal and Investigation Service (FIOD) and the Dutch Authority for Financial Markets (AFM):

• citizen service number (BSN) or tax registration number; and
• date of birth, place of birth, country of birth and residential address.

The documents submitted to the Chamber of Commerce, such as copies of the passports and shareholders and partnership agreements, will not become publicly accessible, but the abovementioned authorities are entitled to inspect such documents.

How can the UBO register be accessed?

The publicly accessible information in the UBO Register can be accessed by any person upon payment of a fee of €2,50 to the Dutch Chamber of Commerce. The requesting person will need to provide proof of identification, and the request to access the UBO Register will also be registered by the Dutch Chamber of Commerce. Any UBO can request information regarding the number of times his information has been requested. This will not include requests made by competent authorities or the Financial Intelligence Unit.

The only searchable term in the UBO is the name of the organisation for which the UBO's have been registered. Requesting persons can therefore not search the UBO Register for a name of a natural person.

When and how shall the UBO's need to be registered?

Dutch organisations that exist on 27 September 2020 must register within eighteen (18) months after that date (Deadline: 27 March 2022). The Dutch Chamber of Commerce will send a letter to all organisations that will need to register their UBOs. It is possible to already register the UBOs prior to receipt of such letter. The ability to register the UBO's is available from 8:00 AM on 27 September 2020 via www.kvk.nl/ubo.

Any organisations established or incorporated as per 27 September 2020 must register their UBO's together with their own registration in the Dutch trade register. Failure to register the personal information of the UBO's will obstruct the registration of that the entity in the Dutch trade register.

What are the sanctions for non-compliance?

The maximum penalty or fine to be forfeited by an organisation in the case of failure to (timely) register a UBO in the UBO Register is €21,750. In exceptional situations, a prison sentence not exceeding two years can be handed or community service can be ordered.

Do you need assistance with the registration of your UBO's?

Should you require assistance with the registration of your UBO's, our corporate notarial department will be more than happy to assist you therewith. Should you require any further information in respect of the obligation to register UBO's in the Netherlands, please do not hesitate to contact us at notariaat@simmons-simmons.com.