UBO register: everything you need to know about the deadline for exercising the right to be heard
UBO register: everything you need to know about the deadline for exercising the right to be heard
August 2022 – The UBO register (or Ultimate Beneficial Owners Register) was introduced by a law of 18 September 2017 on the prevention of money laundering and terrorist financing and the restriction of the use of cash. Its entry into force has been complicated, to say the least, and this year the provisions relating to the UBO register have once again been amended.
Community law
The law of 18 September 2017 is the transposition of a European directive on money laundering: the fourth anti-money laundering directive. This directive requires Member States to take measures to ensure that :
companies and other legal entities incorporated in their territory collect and maintain sufficient, accurate and timely information on their beneficial owners; and
information on the beneficial owners of such entities is kept in a central register in order to facilitate access to such sufficient, accurate and timely information.
In implementation of this Directive, the law obliges companies, (international) NPOs and foundations to collect and maintain information on their beneficial owners. The directors must send this information to the UBO register within one month.
Beneficial owners
The definition of beneficial owners depends on the nature of the legal entity. In a company, beneficial owners are :
Firstly, natural persons who directly or indirectly own a sufficient percentage of the voting rights or a sufficient stake in the capital of the company, including through bearer shares. Possession of more than 25% of the shares or capital of the company is an indication of a sufficient percentage of voting rights or a sufficient direct holding; and
secondly, natural persons who exercise control over the company by other means. For example, through a shareholders' agreement;
finally, if none of the above persons could be identified: the natural persons who hold the position of principal manager.
Sanctions
The law of 18 September 2017 provides that breaches of the obligation to inform beneficial owners are subject to administrative fines. These fines can range from 250 to 50,000 euros and can apply not only to directors, but also to members of the management committee or, in the absence of a management committee, to members who participate in the actual management.
A fine is usually imposed only after the person concerned has received a reminder or notification of a finding of an infringement. In practice, therefore, a first finding of a possible infringement will not result in a fine. It is then still possible to complete the legal obligation to provide information and avoid a fine or to state the reasons why this obligation has not been complied with. Perhaps there has been a mistake.
The person responsible for providing information can also invoke his or her right to be heard or summoned. Until recently, the time limit within which he had to do this was not defined. It was recently clarified that this must be done within one month: the person concerned has thirty days after receiving notification that an administrative fine may be imposed to request a hearing or to be summoned.
As was already the case before, the administration prefers to 'hear' the person responsible for providing information by e-mail - and therefore in writing, electronically - but the person responsible for providing information can always request an oral hearing.