The so-called UBO-register and the central register of shareholders have been discussion topics for some time. The anticipated public nature of the UBO-register is bringing many pens in motion. With the UBO-register, personal data of (wealthy) individuals will enter the public domain. The question is which guarantees of privacy our legislature will want to implement.
Although the exact transformation into legislation remains yet unclear, it is expected that the UBO-register will be introduced in 2017, even though the intended launch date of 26 June 2017 is probably not feasible anymore.
This update provides a brief update and summary of the UBO-register and the central register of shareholders.
Central register of shareholders
At present, the identity of shareholders of a BV or an unlisted NV is only publicly registered if the shareholder is the sole (100%) shareholder. In case of multiple shareholders, the register of shareholders can be consulted to identify shareholdings. This register is kept at the company’s offices and is accessible only to shareholders, holders of limited rights on shares and other persons with meeting rights. The register of shareholders if often or poorly maintained and updated, or is sometimes even lost. Verifying shareholdings or limited rights is thereby in many cases difficult and that’s not conducive to legal certainty.
There has been debate about possible solutions in the form of a centrally kept and properly updated register of shareholders. After assurances by the Netherlands Minister of Security and Justice and subsequent postponements of preparatory steps, by the end of 2016 an initiative bill has been submitted to Parliament which seeks to provide the rules concerning the central register of shareholders, also referred to as ‘CAHR’. The initiators wish to arrange that the information of the register of shareholders is stored centrally by the Dutch Association of Civil-law Notaries (KNB). In the parliamentary notes it is mentioned that the register could provide insight into the involvement of natural persons and corporations and can provide relevant value in the fight against financial and economic fraud, which seems to transgress the practical objective of reliable creating a reliable source of information on shareholdings in the relevant company. Yet according to the proposals, the central register is not accessible to everyone. Only a limited group number of institutions that have a proportional interest have access, whereby the privacy of shareholders is protected as much as possible, at least according to the draft bill.
Even although the CAHR could put an end to practical shortcomings of the current system of registers of shareholders, the proposal has not yet received enthusiastic responses in politics or practice.
The proposed CAHR cannot be judged separately from the 2015 amendments to the European ‘4th anti-money laundering directive’. The directive seeks, among other things, to secure the interests of society against crime such as money-laundering and financing of terrorist acts.
One of the changes prescribes that ultimately on 26 June 26 2017, EU Member States must have a central UBO-register that contains information about the ‘ultimate interested persons’ (ultimate beneficial owner or UBO) of legal persons and other legal entities such as trusts. The relevant entities are also required to keep their UBO data set up-to-date. The information will be included in a central register kept in the Member State where the legal entity is established. According to the directive, the UBO information will be accessible for:
- Competent authorities and the Dutch Financial Intelligence Unit (FIU), without limitation;
- Institutions with notification obligations, in the context of their clients research;
- All persons or organizations that can show a ‘legitimate interest’ that is related to the prevention of money laundering and the financing of terrorism and the related predicate offences, such as corruption, crime and tax fraud.
In light of sensitive personal information contained in the UBO-register, the privacy of UBO’s is protected in a few ways. Following options explicitly provided by the directive, the Minister indicated using four privacy-enhancing measures:
- Each user will be registered;
- There will be a fee charged for access;
- User other than specifically designated authorities and the FIU-EN shall have access to a limited set of data;
- In the event of a risk, for example, kidnapping, blackmail, violence or intimidation is per individual case, an accurate assessment of the risks and whether (certain) UBO-information will be shielded.
The collection and access to data in the UBO-register is at odds with the right to the protection of the personal sphere of UBO’s. With these four measures, the legislator aims to ensure privacy protection, but severe doubts of legal and financial practitioners that these measures suffice in practice. Due to the potentially wide scope of persons ‘with legitimate interest’, guarantees concerning the protection of personal data will become less controllable and enforceable.
The Minister of Security and Justice indicated that ‘for sake of practical simplicity’ the Netherlands will opt for a generally accessible public UBO-register (as opposed to non-public register). Access to the central register of shareholders will be restricted to specific categories of users.
In the context of European privacy legislation, national laws imposing limitations on privacy rights – such as an UBO-register – must meet the requirements of proportionality and necessity. The question is whether a public UBO-register introduced in the Netherlands and the other EU Member States will meet these restrictive requirements. In this regard, a notable example of a way to look at these aspects is the decision of the French Constitutional Court of October 23 of 2016. In this court decision, the recently introduced French public register for beneficiaries of trusts was declared invalid for reasons of disproportionate violation of privacy rights.
At the same time, new extending measures have already been presented in a proposal by the European Commission to again amend the 4th directive against money laundering, including by an additional ‘real estate UBO-register’. That proposal is likely to stretch the scope of the current directive because detecting tax evasion and, for example, protection of minority shareholders as objectives are mentioned. Adhering to the new objectives of the directive, the group of persons with a ‘legitimate interest ‘ to access UBO information may again increase accordingly, which may further weaken the protection of privacy of UBO’s. The new proposal has received strong criticism from the angle of the European privacy working group. The group makes a call to allow access to UBO data to competent public authorities only.
It is our impression that the Netherlands legislator should – more than it has done before – intensify its assessment of privacy impact in the upcoming legislative process on the UBO-register. The 4th anti-money laundering directive offers sufficient room for exception and limitation of access to the UBO-register, and promotes an undisputed instruction to adhere to the EU general privacy regulation. It seems a logical choice for the legislator to demonstrate reluctance to aim for a system of rampant transparency, and to expressly consider the possibility of a UBO-register with limited access for specific categories of organizations only. It will ultimately be up to the policy makers to determine the way forward in 2017.
For more information, please contact Rogier Dahmen, Corporate / M&A.