Als het aan de Raad van Europa ligt, wordt het ubo-register openbaar. In een persbericht van 20 december 2016 over de onderhandelingspositie van de Raad inzake de wijziging van de 4e Europese antiwitwasrichtlijn (‘AMLD4’) worden de veranderingen inzake het ubo-register als volgt beschreven:
enhanced access to beneficial ownership registers, so as to improve transparency about the ownership of companies and trusts. The registers will also be interconnected to facilitate cooperation between member states. Public access is foreseen on the basis of a legitimate interest for all types of companies and trusts, which is an improvement on the current rules as concerns trusts that do not have a business purpose
Wijzigingsvoorstel AMLD van 19 december 2016
Bij het persbericht hoort een wijzigingsvoorstel van 19 december 2016. Over het ubo-register worden in het wijzigingsvoorstel onder meer de volgende tekst voor de considerans van AMLD4 voorgesteld:
(22a) Information on beneficial ownership of trusts and similar legal arrangements should be made available to any person demonstrating a legitimate interest. It will also contribute to increased trust in the integrity of the financial system by enabling those who are in a position to demonstrate legitimate interest to become aware of the identity of the beneficial owners. Access to this information would help investigations on money laundering, associated predicate offences and terrorist financing. Member States should define the conditions under which the legitimate interest can be claimed and the access to the beneficial owner information is granted.
(33) Currently, corporate and other legal entities active in the Union are under an obligation to register their beneficial ownership information, whereas the same obligation does not apply to all trusts and legal arrangements which present similar characteristics. It should be taken into account that these legal arrangements, such as Treuhand, fiducies or fideicomiso set up in the Union, may have different legal characteristics throughout the Union. Member States should require that all legal arrangements governed under their law when having a structure and functions similar to trusts are treated as legal arrangements similar to trusts. By 2020, the Commission should assess whether all trusts and legal arrangements which have a structure and function similar to trusts governed under the law of Member States were duly identified and made subject to the obligations as set out in this Directive. With a view to ensure that the beneficial owners of all legal entities and legal arrangements operating in the Union are properly identified and monitored under a coherent and equivalent set of conditions, rules regarding the registration of the beneficial ownership information of trusts and similar legal arrangements could be consistent with those in place in respect of the registration of beneficial ownership information of corporate and other legal entities.
(35) With full respect to the rights of individuals to privacy , the beneficial ownership information in respect of corporate and other legal entities as well as trusts and similar legal arrangements should be available to persons or organisations that can demonstrate a legitimate interest in accessing the beneficial ownership information. Member States shall define legitimate interest, both as a general concept and as a criterion for accessing beneficial ownership information of each and every category of corporate or other legal entity or trust or similar legal arrangement in their national law. Once the interconnection of Member States’ beneficial ownership registers is in place, both national and cross-border access to each Member State’s register shall be granted based on the definition of legitimate interest of the Member State where the corporate or other legal entity is incorporated or where the trust or similar legal arrangement is administered. In relation to Member States’ beneficial ownership registers of trusts and similar legal arrangements, Member States shall also have competence to establish appeal mechanisms against decisions which grant or deny access to beneficial ownership information.
(35a) With a view to further enhance transparency of business transactions and financial system, Member States may grant wider public access in their national legislation to information on beneficial ownership. Where a Member State decides so, it should have due regard to right balance between the public interest to combat the money laundering and terrorist financing and the protection of fundamental rights of individuals in particular the right to privacy and protection of personal data. Member States should be allowed to require online registration in order to identify any person who requests information from the register.
Ubo-register | artikel 31 AMLD4
Artikel 31 van de huidige versie van AMLD4, het ubo-register artikel, wordt volgens het voorstel van 19 december jl, pagina 29 en verder, ingrijpend gewijzigd:
(10) Article 31 is amended as follows:
(a) paragraph 1 is replaced by the following:
“1. Member States shall ensure that this Article applies to trusts and other types of legal arrangements, such as, inter alia, fiducie, Treuhand or fideicomiso when having a structure and functions similar to trusts. Member States shall identify the characteristics to determine where legal arrangements have a structure and functions similar to trusts with regard to such legal arrangements governed under their law.
Each Member State shall require that trustees of any express trust administered in that Member State obtain and hold adequate, accurate and up-to-date information on beneficial ownership regarding the trust. That information shall include the identity of:
(a) the settlor;
(b) the trustee(s);
(c) the protector (if any);
(d) the beneficiaries or class of beneficiaries;
(e) any other natural person exercising ultimate control of the trust.”;
(b) the following paragraph 3a is inserted:
“3a. The information referred to in paragraph 1 shall be held in a central beneficial ownership register such as the ones referred to in the Article 30 paragraph 3 set up by the Member State where the trust or similar legal arrangement is administered, unless there is sufficient proof that the beneficial ownership information of the trust or similar legal arrangement has been registered in a central beneficial ownership register of another Member State.”;
(c) paragraph 4 is replaced by the following:
“4. Member States shall ensure that the information held in the register referred to in paragraph 3a is accessible in a timely and unrestricted manner by competent authorities and FIUs, without alerting the parties to the trust or similar legal arrangement concerned. They shall also ensure that obliged entities are allowed timely access to that information, pursuant to the provisions on customer due diligence laid down in Chapter II. Member States shall notify to the Commission the characteristics of those mechanisms.
Competent authorities granted access to the central register referred to in paragraph 3a shall be those public authorities with designated responsibilities for combating money laundering or terrorist financing, as well as tax authorities, and authorities that have the function of investigating or prosecuting money laundering, associated predicate offences and terrorist financing and seizing or freezing and confiscating criminal assets.”;
(d) the following paragraphs 4a and 4b are inserted:
4a. The information held in the register referred to in paragraph 3a of this Article shall be accessible to any person or organisation that can demonstrate a legitimate interest. Member States shall define the conditions under which the legitimate interest is granted.
The information accessible to persons and organisations that can demonstrate a legitimate interest shall consist of the name, the month and year of birth and the country of residence of the beneficial owner as defined in Article 3(6)(b).
In conformity with paragraph 3a, Member States may allow for a wider access to the information held in the register in accordance with their national law.
For the purposes of this paragraph, access to the information on beneficial ownership shall be in accordance with data protection rules and may be subject to online registration and to the payment of a fee. The fee charged for obtaining the information shall not exceed the administrative costs thereof.
4b. Whenever entering into a new customer relationship with a trust or other legal arrangement subject to registration of beneficial ownership information pursuant to paragraph 3a, the obliged entities shall collect proof of registration whenever applicable.”;
(e) the following paragraph 7a is inserted:
“7a. In exceptional circumstances laid down in national law, where the access referred to in paragraphs 4 and 4a would expose the beneficial owner to the risk of fraud, kidnapping, blackmail, violence or intimidation, or where the beneficial owner is a minor or otherwise incapable, Member States may provide for an exemption from such access to all or part of the information on the beneficial ownership on a case-by-case basis. Member States shall ensure that these exemptions are granted upon an evaluation of the exceptional nature of the circumstances.
Exemptions granted pursuant to the first subparagraph shall not apply to the credit institutions and financial institutions, and to obliged entities referred to in point (3)(b) of Article 2(1) that are public officials.
Where a Member State decides to establish an exemption in accordance with the first subparagraph, it shall not restrict access to information by competent authorities and FIUs.”;
(f) paragraph 8 is deleted;
(g) paragraph 9 is replaced by the following:
“9. Member States shall ensure that the central registers referred to in paragraph 3a of this Article are interconnected via the European Central Platform established by Article 4a(1) of Directive 2009/101/EU. The connection of the Member States’ central registers to the platform shall be set up in accordance with the technical specifications and procedures established by implementing acts adopted by the Commission in accordance with Article 4c of Directive 2009/101/EC.
Member States shall ensure that the information referred to in paragraph 1 of this Article is available through the system of interconnection of registers established by Article 4a(2) of Directive 2009/101/EU, in accordance with Member States’ national laws implementing paragraphs 4, 4a and 5 of this Article.
Member States shall take adequate measures to ensure that only the information referred to in paragraph 1 that is up to date and corresponds to the actual ownership beneficiaries is made available through their national registers and through the system of interconnection of registers, and the access to that information shall be in accordance with data protection rules.
Member States shall cooperate with the Commission in order to implement the different types of access in accordance with paragraphs 4 and 4a of this Article.”;
(h) the following paragraphs 10 and 10a are added:
“10. For the purposes of this Article, a trust or similar legal arrangement is considered to be administered in each Member State where the trustees are established.
10a. Member States shall notify to the Commission the categories, description of the characteristics, names and where applicable legal basis of the trusts and legal arrangements referred to in paragraph 1 within 12 months from the entry into force of this Directive and upon expiry of that period the Commission should publish within 2 months in the Official Journal of the European Union the consolidated list of such trusts and legal arrangements having a structure and functions similar to trusts.
By 26 June 2020, the Commission shall submit a report to the European Parliament and to the Council assessing whether all trusts and legal arrangements which have a structure and function similar to trusts governed under the law of Member States were duly identified and made subject to the obligations as set out in this Directive. Where appropriate, the Commission shall take the necessary steps to act upon the findings of that report. “
Nederlands overheidsregister van aandeelhouders
Intussen heeft in Nederland het overheidsregister van aandeelhouders (ook als Centraal Aandeelhoudersregister of CAHR aangeduid) vertraging opgelopen. In een brief van 16 december jl. laat de minister van veiligheid het volgende weten:
Uw Kamer heb ik aangegeven  dat de voorbereidingen met betrekking tot het centraal aandeelhoudersregister worden aangehouden, omdat door het kabinet voorrang wordt gegeven aan de totstandkoming van het UBO-register om te bewerkstelligen dat het Europees verplichte UBO-register tijdig kan worden geïmplementeerd. Dit biedt tevens gelegenheid tot nadere gedachtevorming over het centraal aandeelhoudersregister, waarbij de ervaringen met betrekking tot het UBO-register kunnen worden meegenomen.
 Handelingen II 2015/16, nr. 70, item 27.
- Persbericht Raad van Europa, concept wijzigingsrichtlijn 19 december 2016, statements 19 december 2016
- AMLD4 revision: final version expected at the beginning of 2017 (mijn algemene blog)
- Andere berichten over de 4e Europese antiwitwasrichtlijn (mijn algemene blog)
Dit artikel is ook geplaatst op het ubo-register weblog