Belgian UBO Register
Important update for subsidiaries of listed companies
As previously reported (see our briefing of August 2019, the Belgian UBO Authority decided by way of administrative tolerance that the obligation to register UBOs in the Belgian UBO Register does not apply to qualifying listed companies, i.e. companies listed on a regulated market subject to disclosure requirements consistent with EU Law or similar requirements and which ensure adequate transparency of ownership information (Exempt Listed Companies).
The Belgian UBO Authority now published two further clarifications with respect to this exemption:
1° Subsidiaries of Exempt Listed Companies
Importantly, the Belgian UBO Authority has now clarified the impact of this exemption on subsidiaries of Exempt Listed Companies. The UBO Authority makes the following distinction:
- Subsidiaries which are (directly or indirectly) 100% held by Exempt Listed Companies, are also exempt from the obligation to register their UBOs;
- Other subsidiaries are not exempt. These subsidiaries must register their UBOs on the basis of the normal UBO identification and registration rules.
The extension of the exemption to 100% subsidiaries is obviously helpful given the similarity of ownership and control with their listed parent company.
However, many Exempt Listed Companies will see the practical benefit of the exemption reduced by the fact that their Belgian subsidiaries which would not be wholly-owned (including joint venture entities and companies with minority shareholders, and all subsidiaries of such companies) must register their UBOs according to the standard rules. These subsidiaries will have to register all their UBOs, i.e., both the UBOs potentially identified through the participation not held by the Exempt Listed Company and the UBOs with ownership or control via the Exempt Listed Company. Consequently, as soon as an Exempt Listed Company does not hold 100% in at least one subsidiary, such subsidiary will have to register the Exempt Listed Company’s UBOs in the UBO Register, with the administrative burden that goes with it (UBO registration process, keeping registered UBO information up-to-date, information obligation towards UBOs, etc.)1. The potential alternative solution in which these subsidiaries would only submit limited information for such shareholder structure by reference to their listed parent company was not retained by the UBO Authority.
2° Equivalence to EU regulated markets
As mentioned above, in order for companies listed on a non-EU trading venue to qualify as an Exempt Listed Company, the third-country legal and supervisory framework must be equivalent to that of EU regulated markets in terms of disclosure and must ensure adequate transparency of ownership information. The FAQ now clarifies that the qualifying non-EU trading venues are the ones assessed by the European Commission as being equivalent to regulated markets as defined in Directive 2014/65/EU. The FAQ refers to the equivalence decisions included in this document. These equivalence decisions consider a number of trading venues in the United States and Switzerland as being equivalent to EU regulated markets.
We closely monitor all the developments in this area and would be happy to assist you with any questions you may have on this or any other AML related topics. Please do not hesitate to get in touch with any of your regular contacts at Freshfields in Brussels.
(1) Non-Belgian subsidiaries remain subject to the legal framework of their jurisdiction of incorporation. For their non-Belgian subsidiaries, Belgian listed companies should verify whether an exemption exists under local law in case the subsidiaries has a listed parent.
(2) The above clarifications were published through an update of the FAQ on 26 August 2019 even if the current version of the FAQ mentions that it was most recently updated on 19 July 2019.