Directive (EU) 2015/849 of 20 May 2015 (“Fourth AML Directive”) requires all EU Member States to set up a national register in which legal entities like companies must file accurate and up to date information about their Ultimate Beneficial Owner (“UBO”).
The Fourth AML Directive excludes listed companies from this filing obligation provided they are “subject to disclosure requirements consistent with Union law or subject to equivalent international standards which ensure adequate transparency of ownership information”.
However, this exemption was not retained in the Belgian AML Act of 18 September 2017 (“Belgian AML Act”) which incorporates the Fourth AML Directive into Belgian law. The FAQ published by the Ministry of Finance initially confirmed that listed companies indeed fell within the scope of the implementing Royal Decree. Therefore, it was generally assumed that listed companies had to register their UBO in Belgium.
In an updated version of the FAQ published on 19 July 2019 (Dutch / French) Belgian authorities now take the opposite position and state that listed companies are exempted from registering their UBO if they are subject to transparency requirements consistent with Union law or equivalent international standards.
This 180* shift follows claims by some legal scholars that the initial position of the Belgian authorities (as articulated in the earlier FAQ) was irreconcilalble with the Fourth AML Directive as the directive did not explicitely allow member states to derogate from the exemption regarding listed companies.
With the update of the UBO Register FAQ, Belgian authorities have now taken this criticism to heart.
The FAQ was further amended in August 2019 to clarify that the aforementioned exemption also applies to companies that are wholly owned subsidiaries of a listed company. Nevertheless, these subsidiaries do have to include information about their listed parent company as well as any intermediate company in the Belgian UBO Register.
For an elaborate Q&A regarding the Belgian UBO register see our earlier post Ulimate Beneficial Owners Register operation as of today - Compliance required by 30 September 2019