On 22 November 2022, the European Court of Justice (ECJ) judged that the European UBO registers should not be publicly accessible. High-level summarizing, access to UBO registers should be granted only to institutions and persons having a legitimate interest.
This judgement has caused that UBO registers accross the EU are not accessible since 22 November 2022, pending a decision to be made by the respective EU member states on which institutions and persons would have a 'legitimate interest'.
It is noted that the judgement and the closure of access to the UBO registers did not cause the obligation to register UBOs to be halted too. That obligation continued to be in force.
Now, on 20 January 2023, the Dutch Minster of Finance issued an update on the Dutch UBO register. She explained that the EU Directive imposing the UBO register (being: Directive (EU) 2018/843 or so-called “AMLD 5”) in principle contains minimum requirements. EU member states may impose more strict requirements, which could enable a public access to the UBO register. However, the Dutch government has now concluded that there are not sufficient arguments to implement AMLD 5 more strict.
Therefore, the public access to the Dutch UBO register, as currently laid down in Dutch law, will have to be amended. The Minister of Finance will therefore present a draft bill of law soon, in order to define who will be considered to have a legitimate interest for gaining access.
In practice, this will mean the following for Dutch practice:
The obligation for companies to register their UBOs has therefore not been lifted nor suspended. However, due to the uncertainty that the judgement of the ECJ has caused, the Minister of Finance grants an additional grace period up to 1 February 2023 for companies to register their UBOs, if not done so already. Until that date, no sanctions will be imposed in case companies are not compliant. However, the Dutch authorities will pick up again as from now on making sample checks if companies have registered their UBOs. It therefore remains recommended to register the UBOs.
作者 Maja Bolè 以及 Thijs van der Vegt