The re-opening of the Dutch UBO Register

January 26, 2023 | Blog

The need for accurate and up-to‑date information on the ultimate beneficial owner (‘UBO’) was considered a key factor in tracing criminals who might otherwise hide their identity behind a corporate structure. The European Anti-Money Laundering Directives required Member States to set up a register in which this information on the UBO could be stored (the ‘UBO Register’). The Dutch UBO Register was made accessible to:

  • competent authorities such as the Dutch Central Bank and the Financial Intelligence Unit;
  • institutions as set out in the Dutch money laundering and terrorist financing (prevention) Act, Wet ter voorkoming van witwassen en financiering van terrorisme, ‘Wwft’) (the 'Institutions’); and
  • all members of the public.
UBO Register: access denied

In a ground-breaking ruling of 22 November 2022, the European Court of Justice (‘CJEU’) argued that the access to information on the UBOs by the general public constitutes a serious interference with the fundamental rights of respect for private life and of the protection of personal data of these UBOs. In response thereto, the Dutch Minister of Finance denied access to the UBO Register for (i) competent authorities, (ii) Institutions and (iii) all members of the public until further notice.

UBO Register: re-opened

On 20 January 2023, the Dutch Minister of Finance informed the Dutch House of Representatives on the way forward. She decided that in accordance with the ruling of the CJEU the access to the UBO Register must be limited to (i) competent authorities, (ii) Institutions and (iii) any member of the public with a legitimate interest. Therefore, members of the general public without a legitimate interest will no longer have access to the UBO Register.

Access to the UBO Register for competent authorities and Institutions will be restored as soon as possible. However, the Minister acknowledges that identifying all Institutions and technically connecting them to the UBO Register will be complex and time-consuming. Smaller Institutions in particular will encounter difficulties as they usually do not have a direct connection with the UBO Register, resulting in a more complex process. Identifying and connecting major banks should be relatively easy.

With respect to any member of the public with a legitimate interest, the Ministry of Finance is considering establishing a list of objective indicators, on the basis of which the existence of a ‘legitimate interest’ can be determined. In accordance with the ruling of the CJEU, the press will have such a legitimate interest, for example.

Consequence for Institutions

Under the Wwft, Institutions are obliged to inform the Chamber of Commerce of any discrepancies between the information in the UBO Register and the information obtained during customer due diligence. However, at the moment Institutions do not have access to the UBO Register and are unable to verify the information on the UBOs. Consequently, the obligation to inform the Chamber of Commerce of any discrepancies is temporarily waived until the respective institution has regained its access to the UBO Register.

Consequences for the UBO Register of trusts and similar constructions

The Ministry of Finance considers that the above is also applicable regarding the UBO Register for trusts and similar constructions. More information on the UBO Register for trusts and similar constructions can be found in our previous blog: AKD - Het nieuwe UBO Register Trusts (only available in Dutch).

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