Arrêté Royal modifiant l’arrêté royal du 30 juillet 2018 relatif aux modalités de fonctionnement du registre UBO

The Royal Decree of 8 February 2023 makes a number of modifications to the Royal Decree of 30 July 2018 regarding the functioning of the UBO register.
This UBO register is referred to in Articles 73 to 75 of the Law of 18 September 2017 relating to the prevention of money laundering and the financing of terrorism and the limitation of the use of cash, transposing EU Directive 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, as amended by Directive (EU) 2018/843. The objective of the UBO register is to have a centralized database containing all persons who own or control one of the legal entities identified in the Law of 18 September 2017.
The Royal Decree of 8 February 2023 contains the following articles of special interest:
Article 1 of the present Royal Decree primarily aims to make additions to the partial transposition of Directive 2018/843 into Belgian law. It was a partial transposition, as most of the provisions of these directives have already been transposed by other legislation, notably by the Law of 18 September 2017, and the Royal Decree of 30 July 2018, concerning the functioning of the UBO register.
Article 2 Point a) provides clarification on the definition of the term „information debtor“ in point 3 of Article 2 of the Royal Decree of 30 July 2018 on the functioning of the UBO register. This definition not only applies to entities required to provide information to the UBO register, but also to their legal representatives. This provision aims to clarify that it is not only the company or entity itself that is considered an information debtor, but also its legal representatives. Point b) adds to the definition what is meant by „electronically.“ This concept is systematically introduced by this Royal Decree amending the Royal Decree of 30 July 2018 supra in order to fully align the provisions with the already applicable operation of the UBO register. Point c) introduces two new definitions, namely „sanctioning authorities“ and „other authorities.“
Article 3 outlines the information that companies, non-profit associations, international non-profit associations, or foundations must communicate to the UBO register about their beneficial owners. Changes have been made to ensure the provisions are consistent with the actual functioning of the UBO register, including the obligation to provide information about indirect beneficial owners and their control over a company. These changes also apply to non-profit associations and foundations.
Articles 4 & 5 insert the notion „by electronic means“ in order to make the provisions conform to the practical functioning of the UBO register, both for the current situation and for future operation, when Chapter 11 of the Law of 26 January 2021 on the dematerialisation of relations between the Federal Public Service Finances, citizens, legal persons, and certain third parties, and amending various tax codes and tax laws, enters into full force.
Article 6 Point a) introduces the notion „by electronic means“ to make the provisions conform to the actual operation of the UBO register, both for the current situation and for future operation, when Chapter 11 of the Law of 26 January 2021 on the dematerialisation of relations between the Federal Public Service Finances, citizens, legal persons and certain third parties, and amending various tax codes and tax laws, will come into full effect.
Point b) guarantees access for other authorities authorised by other legislation to search for or control ultimate beneficial owners and extends access to the UBO register to sanctioning authorities and other authorities as defined in Article 2, points 17°/1 and 17°/2, inserted by point c) of this royal decree. This will also allow for consultation of the register of ultimate beneficial owners in the context of the application and control of obligations relating to embargoes, asset freezes and other restrictive measures imposed by the United Nations, the European Union and national provisions. The sanctioning authorities are the competent authorities for this application and control. The full list of these authorities is available on the website of the Belgian Foreign Affairs Ministry.
Point c) implements the judgment of the Court of Justice of 22 November 2022, stating that public access to beneficial ownership information constitutes a serious interference with the fundamental rights of privacy and personal data protection, as enshrined in Articles 7 and 8 of the EU Charter of Fundamental Rights. Disclosure of this information enables an unlimited number of people to gain insight into the material and financial situation of a beneficial owner. Furthermore, the potential consequences of an abusive use of personal data are exacerbated by the fact that, once made available to the public, such data can be freely consulted, stored and disseminated. As a result, Article 30(5)(c) of the 4th Anti-Money Laundering Directive cannot be maintained or applied as modified, and the original version of the article should be reapplied. This article provides that access is only possible if the natural or legal person can demonstrate a legitimate interest. Thus, access for the general public is replaced by access for natural or legal persons able to demonstrate a legitimate interest.
Article 10 deals with access to the UBO Register on the basis of legitimate interest. Points 1 and 2 provide the necessary legislative adjustments to include individuals who have been denied access to the register. Points 3 to 6 insert the necessary provisions to make the article entirely consistent with the functioning of the UBO register. Points 7 and 8 complete and specify the procedure for access requests based on legitimate interest.
Article 12 introduces the legal basis necessary for authorities and obligated entities to communicate consultation logs to ensure compliance with their own personal data protection obligations. Logs are created by the finance department for each consultation of the UBO register and contain information on who accessed the register and when.
Article 14 amends of Article 17 (1) of the Royal Decree of 30 July 2018 ensuring that the Administration of the Treasury can also verify compliance with the obligations set out in Article 5 of the same law, which requires information providers to update the UBO register at least once a year.