Anonymity of the shareholder (partially) lifted in the fight against money-laundering and terrorism

Anonymity of the shareholder (partially) lifted in the fight against money-laundering and terrorism

In the European Union, the purpose of Directive 2015/849 of 20 May 2015 is to prevent the Union’s financial system from being used for money laundering or the financing of terrorism.

Within that framework, the obligation is also imposed on the Member States to set up a register - by 26 June 2017 at the latest - in which the "ultimate beneficial owner" of each company in the territory is recorded.

The ultimate beneficial owner is defined in the directive as the natural person who in the final analysis (hence also: indirectly, for example via companies) is the owner or has control over a legal entity. A share position of 25% plus one of the shares in the hands of a natural person is an indication of control or ownership (rebuttable presumption). The control can also be established in some other manner. The Member States can set a lower percentage.

If it cannot be determined who the ultimate beneficial owner is, the natural person who belongs to the higher managerial personnel is deemed to be the ultimate beneficiary. 

For the moment Belgium is right on schedule: on 31 March 2017 the government approved a bill to set up this new register within the FPS Finance. This means that the texts are now in the hands of the Council of State for advice. Only after that advice is ready will the proposed law texts be published. 

It is therefore not yet known today exactly how the Belgian register will be set up, but it is clear that the companies will have to provide the data that are included in the register. Because the Member States have to employ effective methods to fulfil EU obligations, we expect that the bill will also provide for sanctions.

Who will have the right to inspect the register also remains to be seen. The directive provides that the competent authorities (perhaps what is intended are the authorities competent for money laundering prevention and combating terrorism - thus not the tax authorities) and the entities obliged to report (banks, accountants, lawyers in certain files, etc., but also casinos) must receive the right to inspect, but also "all persons or organisations that can demonstrate a legitimate interest".

If Belgium remains on schedule, we’ll know more soon.

For more information on this topic, you can consult Sophie Deckers (author) and Gwen Bevers (unit head).