On 2 May 2022, the Implementation decree concerning the registration of beneficial owners of trusts and similar legal arrangements (Implementatiebesluit registratie uiteindelijk belanghebbenden van trusts en soortgelijke juridische constructies, the Implementation Decree) was published in the Dutch Government Gazette (Staatsblad).
The Implementation Decree, together with the Implementation act concerning the registration of beneficial owners of trusts and similar legal arrangements (Implementatiewet registratie uiteindelijk belanghebbenden van trusts en soortgelijke juridische constructies, the Implementation Act), implements Article 31 of the Fifth Anti-Money Laundering Directive and introduces a central beneficial ownership register for trusts and similar legal arrangements (the UBO Register). The Implementation Decree fleshes out a number of requirements included in the Implementation Act, including but not limited to the definition of an ultimate beneficial owner (uiteindelijk belanghebbende, UBO) and the sizes of participants’ economic interests for registration purposes.
In the Netherlands the most relevant similar legal arrangement is the fund for joint account (fonds voor gemene rekening, FGR). A significant number of investment funds (undertakings for collective investment in transferable securities as well as alternative investment funds) in the Netherlands are structured as an FGR because of the flexibility of the way in which the fund can be structured, as well as favourable tax treatment. An FGR is setup by way of an agreement generally between a fund manager, a foundation (acting as legal titleholder) and the participants. Consequently, FGRs do not have legal personality.
Based on the consultation version of the Implementation Decree, FGRs were required to register all participants with an economic interest of 3% or more as their UBOs (in addition to the manager and legal titleholder). The final version of the Implementation Decree now contains an exception for FGRs ‘offered’ to more than 150 persons and which are managed by a manager with a relevant licence under the Act on the Financial Supervision (Wet op het financieel toezicht, the AFS). FGRs who are able to benefit from this exception will only need to register the group of individuals in whose interests the FGR is primarily established/operated (rather than the individual participants).
The date of entry into force of the Implementation Decree is yet to be determined. This will primarily depend on the technical realisation of the UBO Register by the Dutch Chamber of Commerce (Kamer van Koophandel).