By now, everyone seems to be familiar with the Belgian UBO register. So high time to dot the i's and cross the t's and solve the last technical details with a supplementary Royal Decree of 23 September 2020 (hereinafter referred to as ‘the RD’).
According to the (summary) report to the King, the RD aims to make the previous Royal Decree of 30 July 2018 fully conform to the most recent legal developments by carrying out a number of technical and linguistic (?!) corrections. In this context, according to the report, the provisions concerning the protection of personal data are also modified to make them conform to the current legal framework, taking into account the advice of the Council of State and the Data Protection Authority. However, when we take a closer look at the RD, this has far-reaching consequences, primarily where access to the register is concerned. Below, we will discuss the most important changes.
The indirect ultimate beneficial owner
Under the initial decree, with regard to the indirect ultimate beneficial owner, i.e. an ultimate beneficial owner who owns or controls the reporting agent via one or more legal entities, only the so-called weighted percentage had to be registered for companies. Under the new RD, from now on, all participation percentages of the UBO in each of the intermediary entities, and hence at each level of the control or ownership structure, must be registered. In practice, this new rule is connected to the embedding of the existing IT system, in which it was already mandatory to register the participation percentages of the UBO in the intermediary entity and the participation percentages held by the intermediary entities in each other. In other words, the text of the RD is brought in line with the FAQs and the IT system.
Documentation obligation
From now on, reporting companies, (international) NGOs, foundations, trusts and similar constructions – in short: all reporting agents – will be under the obligation to provide all documents that demonstrate that the information included in the register is sufficient, accurate and up to date. In the first four versions of the FAQs, it was already mentioned that the registered information had to be supported with underlying documents, to which end reference was made to a copy of the identity card/passport of the UBO, the deed of incorporation and the articles of association of the company, and the register of shareholders. Most of these documents are also mentioned in a news flash from the Treasury. This news flash also states that documents coming from a third country must be notarised.
In practice, this administrative burden was met with great protest, especially because this obligation to upload underlying documents during registration was not imposed by the RD of 30 July 2018. However, as the first version of the IT system required uploading underlying documents, reporting agents initially attached blank documents to the registration. As a result, in the FAQs of 2 April 2019 the Treasury abandoned its position on the mandatory inclusion of annexes.
With the current amendments of the RD, each reporting agent will now be under the obligation to provide the underlying documents together with the registered information. In particular, this also means that all reporting agents have to comply with this administrative obligation for the information about the UBOs already registered by them, as soon as possible, taking into account the date of entry into force of the RD of 11 October 2020, a date which has already been postponed until 30 April 2021 via administrative tolerance.
However, for trusts or similar constructions for which the information about the UBO has already been included in a similar register of another Member State, the submission of an extract from this information would still suffice and, in this case, there would be no obligation to register the underlying documents that demonstrate that this information is up to date and accurate.
Trusts and similar in the CBE
Another remarkable change is the prior registration of reporting trusts, trust managers and similar legal constructions in the Crossroads Bank for Enterprises (CBE), which is mandatory according to the RD.
The reason for this is that the IT system only allows registration of the reporting agent and its UBOs based on a CBE number. Therefore, according to the report, this is a necessary addition to make the transposition of Article 31(3a) of the 4th Directive operational. Indeed, registration in the register can only take place by means of the unique identification number that is assigned upon registration in the CBE.
This is remarkable, because this means that a foreign trust or trust manager would have to comply with Section III.16 of the Belgian Code of Economic Law. The question arises whether the Belgian legislator can impose this obligation on a foreign trust or similar construction.
Access to the register
The most far-reaching changes relate to access to the register. First of all, from now on, not only the currently registered information will be accessible, but also the full history of registrations. Until now, the history could be consulted in the IT system under the ‘overview of changes’ tab. Despite the fact that the RD now allows for this tab to remain accessible in the UBO register, this tab still contains problematic information. For instance, under this tab, the identity of the person who carried out the registration is displayed as well. If the registration was carried out by a representative, this may constitute a breach of professional secrecy for this representative.
In addition, for some incomprehensible reason, access to the data of certain UBO categories of (international) NGOs and foundations is open to any citizen, without any need to demonstrate a legitimate interest. Specifically, it concerns the data of the following UBO categories: members of the Board of Directors, persons authorised to represent the foundation or the NGO, persons in charge of daily management, and the founder of the foundation.
However, the registered data of the beneficial owners and other persons controlling the (international) NGO or foundation via other means will only remain accessible to the general public if a legitimate interest can be demonstrated. It is remarkable that the report to the King clarifies that the RD of 30 July 2018 was amended/supplemented according to the advice of the Council of State and the Data Protection Authority. The European Data Protection Supervisor is very clear on this in its opinion of 2 February 2017 by stating, among other things, that access to the registered information should be restricted to entities in charge of law enforcement, and complying with the proportionality principle. In its report of 4 July 2018, the Council of State also points out that granting access to the data of the UBOs of (international) NGOs and foundations without demonstrating a legitimate interest may constitute a breach of the Directive and the right to a private life. Thus, the RD goes much further in this.
Preference of the IT system?
Therefore, when reading the supplementary RD, one can get the impression that the supplementary RD has ‘solved’ the initial problems that existed with the current IT system. Maybe it seemed easier to amend the RD than to make some changes in the IT system.
Furthermore, the fact that access to the information about the UBOs was significantly extended for both the competent authorities and the public, without proper justification as regards the proportionality of these apparently purely technical changes, must be strongly criticised.
In the absence of specific provisions regarding its entry into force, the RD entered into force 10 days after its publication on 11 October 2020. However, in the meantime, the general administration of the Treasury has published a news flash in which it is stated that for existing reporting agents who were already registered in the UBO register prior to 11 October 2020, there will be an administrative period of tolerance until 30 April 2021. However, reporting agents registering after 11 October 2020 have to comply with these new obligations immediately.
In short: the RD of 23 September 2020 seems to be a new chapter in the UBO register saga.
For more information or questions, please consult your usual Tiberghien adviser.
Gerd D. Goyvaerts - Partner (gerdd.goyvaerts@tiberghien.com)
Stephanie Gabriel - Senior Associate (stephanie.gabriel@tiberghien.com)
Steven Demeulenaere - Associate (steven.demeulenaere@tiberghien.com)