On 30 May 2023, the draft legislative proposal on access to the Dutch UBO register (the Legislative Proposal) was published for public consultation. The purpose of this proposal is to clarify, in the short term, the rules on access to information about the ultimate beneficial owners (UBO) of companies and other legal entities or arrangements. Access will be restricted, which means that the UBO registers will no longer be publicly accessible, but only to specifically designated parties.
In November 2022, the Court of Justice of the European Union (CJEU) published a judgment in which it ruled that the provision in the Fourth Anti-Money Laundering Directive (4AMLD), which provides that Member States must ensure that any member of the general public must have access to UBO information, is insufficiently substantiated and gives r
aise to privacy concerns and therefore invalid. Information in the UBO register should not be available to any member of the general public, but only to any person or organization that can demonstrate a legitimate interest.
In light of this
judgment, which is binding throughout the EU, the Dutch Minister of Finance temporarily suspended access to the Dutch UBO register until further notice and announced that amendments to the Dutch rules implementing 4AMLD were required. The Dutch Minister of Finance has now published the Legislative Proposal that includes these amendments for public consultation.
The Legislative Proposal provides that four categories of person should have access to the UBO register:
- Parties for which mandatory access must be arranged on the basis of 4AMLD. This concerns, among others, the financial intelligence unit and competent authorities, institutions as defined in the Act on the prevention of money laundering and terrorism financing (Wet ter voorkoming van witwassen en financiering van terrorisme, Wwft) and parties that can demonstrate a legitimate interest. The category of parties that can demonstrate a legitimate interest is to be further detailed by means of a separate decree that is still to be published.
- Parties granted access in the interest of compliance with sanctions and the supervision and enforcement thereof. These are mainly institutions as defined in the Wwft, but also other entities such as non-life insurers.
- Governing bodies for which, in connection with a statutory or European law task, it is necessary to identify UBOs. This includes EU and Dutch public authorities.
- Parties granted access to their own data. Entities can obtain an extract of their own information in the UBO register, which can be used to demonstrate who has been registered as an UBO when entering into a transaction.
The Dutch Minister of Finance now invites market parties to respond to the Legislative Proposal. The deadline for responding is 28 June 2023. The Legislative Proposal is available here.