Netherlands Corporate Alert: UBO Registrations of Trusts and Funds for Joint Account

Key aspects for your consideration

• As of 1 November 2022 trusts and funds for joint account (fondsen voor gemene rekening) will be required to register an Ultimate Beneficial Owner (uiteindelijke belanghebbende) (UBO) with the Dutch UBO Register as managed by the Dutch Chamber of Commerce. The initial registration for existing trusts and funds for joint accounts with the UBO Register will need to be completed before 1 April 2023.
• A trust with a trustee located in the Netherlands must register its UBO. The same applies, for example, in case a fund for joint account is created under Dutch law. Note that the criteria that apply to determine whether a UBO of a trust or fund for joint account qualifies for registration are different from (and wide in scope) those applied to Dutch legal entities.

As UBO of a Trust qualifies?

The trustee of a trust that is:

• located in the Netherlands; or
• located outside the European Union and enters into a business relationship or acquires real estate in the Netherlands,

is required to register the trust’s UBO. The trust is obliged to provide the trustee with the relevant information and documentation to enable the trustee to register the UBO and keep the registered UBO information up-to-date.

As UBO of a trust qualifies the settlors, trustees, protectors, individuals exercising control over the trust and all its beneficiaries. If no one qualifies as UBO based on the economic interest in the trust, the beneficiaries will as a group be defined as UBO. That group of individuals upon registration has to be described accurately on the basis of specific characteristics or per category of beneficiaries.

In case the trust’s settlors, trustees and protectors are legal entities, their UBOs will qualify as UBOs of the trust as well.

As UBO of a fund for joint account qualifies?

The manager (beheerder) and the legal title holder (juridisch eigenaar) of a fund for joint account qualify as its UBOs.

The funds’ participants are considered to be in the same category as the beneficiaries of a trust, meaning the individual participants can be considered an UBO when no other UBO can be determined. If, however, the criteria of the following exemption are met, the participants may instead be registered as a group. The criteria for the exemption are as follows. The fund:

• has at least 150 participants;
• is managed by a certified manager as referred to in the Financial Supervision Act (Wet op het financieel toezicht); and
• is under the supervision of the AFM.

Where the fund’s manager and legal title holders are legal entities, their UBOs qualify as UBO of the fund.

Managers and UBOs of funds for joint account incorporated under Dutch law are required to collect its UBO information and keep the registered UBO information up-to-date.

Details to be registered?

The following details of the trust or fund for joint account will be registered:

• name and type of the trust or fund;
• date and place of its establishment; and
• its purpose.

Additionally, certain details of the UBO will be registered, such as:

• the UBO’s first- and last name; and
• the percentage of interest in the trust or fund (by category: 0%-25%, 26-50, 51-75% or 76-100%).

Further details required to be submitted to the UBO register will not be made publicly available. Currently as a consequence to the ruling of the Court of Justice of the European Union (CJEU) on 22 November 2022, the UBO register is inaccessible until further notice.

UBO-register to be closed to the public

In its ruling, the CJEU considered the general public’s access to information on beneficial ownership to be a serious interference with the fundamental privacy and personal data protection rights within the European Union. As a consequence the Dutch Ministry of Financial Affairs temporarily closed public access to the Dutch UBO register until further notice. In case you are interested, please see our earlier alert. We will inform you of further developments as and when they become available.

The ruling by the CJEU does not affect the obligation for legal entities (trusts and funds for joint account included) to register their UBO.

Should you have any questions please do not hesitate to contact us.