The introduction of the obligation to create the UBO-Register by the Law of 18 September 2017 allows to identify the ‘Ultimate Beneficial Owners’ (UBO) of Belgian companies, foundations, not-for-profit associations, trusts and other similar legal entities.
With the Royal Decree of 30 July 2018 regarding the operating modes of the UBO-Register (published in the Belgian Official Gazette on 14 August 2018) the UBO-register will be in effect as from the 31st of October 2018. Concretely, this means that all reporting agents will have to comply with these new formalities within one month of the entry into force of this new regulation.
The UBO or ‘Ultimate Beneficial Owner’ is the natural person who ultimately owns or controls a certain entity. The Law arranges several categories of ultimate beneficial owners, based on the type of entity.
The identification of the ultimate beneficial owner of a company is done according to a cascade-system. A UBO of a company can be considered:
For foundations and not-for-profit associations, not only the founders of a foundation and the natural persons in whose main interest the association or foundation has been set up or operates are considered as a UBO, but also the directors, all natural persons charged with day-to-day management or any other natural person exercising ultimate control over the foundation or association by other means.
Trusts and other similar legal entities have comparable qualification standards. More specifically, the settlor, trustee, the protector (if any), the class of persons in whose main interest the legal arrangement or entity is set up or operates and, finally, any other natural person exercising ultimate control over the trust by means of (in)direct ownership or by other means will be considered as UBO of a trust.
Directors of companies, not-for-profit associations and foundations/the trustees of trusts are obliged to declare the following information to the UBO-Register: first and last name of the ultimate beneficial owner; date of birth; nationality, country of residence; full address; date on which the person became a ultimate beneficial owner;, national registration number.
The following information has to be declared specifically by companies:
The above information should be timely updated (namely, within one month following the moment the information of an ultimate beneficiary is known or has changed) and be reported to the UBO-Register. Directors or trustees who don’t comply with these new regulations will risk a fine from 250 to a maximum of 50.000 EUR (to be multiplied by 8) for each violation.
Unlike not-for-profit associations, foundations, trusts or other similar legal entities, the UBO-Register of companies is accessible by every person without any written request and even without showing a legitimate interest. If you, as an ultimate beneficial owner do not agree with the above, you can request confidentiality of your data. However, such confidentiality can only be granted in exceptional circumstances. While claiming the confidentiality of your data, you will have to prove that you are being exposed to a disproportionate risk, such as the risk of fraud, kidnapping, extortion or blackmail. Limited access of the UBO-data can also be obtained if the beneficiary is a minor or is legally incapacitated.
Companies, not-for-profit associations, foundations, trusts and other legal entities have time until 30 November 2018 to gather and upload the required information in to the UBO-register. We expect that the Belgian Administration will soon provide more guidelines about the practical implementation on its website.
In anticipation it is advisable to already take the following preparatory measures: