This article was published in 2020. Laws, case law and regulatory guidance may have changed since then. Contact us for up to date advice.
The Dutch Senate recently adopted the ‘Implementation Act on the registration of ultimate beneficial owners of companies and other legal entities’. As a result, entities incorporated from 27 September 2020 must also register information about their ultimate beneficial owner(s) (“UBO”) upon first registration in the trade register. The UBO register also applies to healthcare institutions. A transitional period of 18 months applies to existing entities that are already registered. After this period, they too must register information about their UBO(s). This registration obligation applies to entities that are required to be registered in the Trade Register of the Chamber of Commerce. Examples include a private limited company (B.V.), general partnership (VOF), foundation, association, cooperative and professional partnership (maatschap).
Below, we answer various relevant questions about the UBO register for healthcare institutions
**What is a UBO? **UBO is the abbreviation for Ultimate Beneficial Owner, which in Dutch translates as uiteindelijk belanghebbende. A UBO is the natural person who ultimately owns or controls the healthcare institution. This includes, for example, a person who:
- directly or indirectly holds more than 25% of the shares, voting rights or ownership interest and/or
- exercises actual control over that entity.
The 25% threshold in any case makes clear that there can be more than one UBO. Exactly who these natural persons are depends on the legal form of the healthcare provider and on the ownership and/or control relationships. Please note: a UBO is always a natural person. A legal entity cannot be regarded as a UBO.
If no UBO can be identified, all members of the board of the entities mentioned above must be registered in the trade register as so-called ‘pseudo-UBOs’. For partnerships, in such a case they must register their partners. Limited partners do not need to be registered as UBOs.
UBO register for healthcare institutions
Because of European anti-money laundering rules, the Netherlands is obliged to introduce a register in which it is centrally recorded for each legal entity who the UBO is. In addition, health insurers are legally obliged to establish who the UBO or UBOs are of all undertakings to which they transfer money. You must therefore provide the correct details for the UBO register for healthcare institutions.
##Which details of its UBO must a healthcare provider register?
The act distinguishes between (i) mandatory prescribed details and (ii) additional details.
The mandatory prescribed details
The mandatory prescribed details are publicly accessible to everyone; the additional details are only accessible to competent authorities such as the Public Prosecution Service (OM), FIOD, DNB and AFM, among others.
Mandatory prescribed details include first name(s) and surname, month and year of birth, country of residence, nationality and the nature and extent of the economic interest (within certain ranges).
Additional details
In addition, the act provides for so-called additional details. Additional details include the day and place of birth, address, citizen service number (BSN), a copy of the documentation on the basis of which the identity of the UBO has been verified and a copy of the documentation substantiating why a person has the status of UBO and what the nature and extent of the interest held by the UBO is. With regard to the latter, you can think of, for example, the deed of incorporation, a copy of the shareholders’ register, depositary receipt holders’ register or membership registers, etc.).
Timely submission of UBO details
To ensure that the information about UBOs included in the trade register remains as accurate and up to date as possible, the entities subject to registration must ensure that information about the UBO is correct and complete at all times. This means that if there is a change in the UBO, this must be reported to the trade register.
Sanctions for failing to register UBO details (on time)
Various sanctions apply to breaches of the obligation to register and maintain the details of the UBO in the trade register. For example, breaching the registration obligation can result in imprisonment of up to six months, a community service order or a fine of up to € 21,750. An order subject to a penalty or an administrative fine may also be imposed. In the latter case, your organisation may be compelled by the government to comply with the obligations relating to the UBO register after all. The government may attach an (often short) deadline to this, with a sanction in prospect if you still do not meet the requirements.
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