In the autumn of 2022, the European Court of Justice ruled that public access to the UBO register is in breach of the right to privacy (read more here: Public event cancelled accessibility of the UBO register (more on this). Since then, the UBO register has no longer been accessible to the public. The government has since drawn up regulations to restrict access to the UBO register. An online consultation on this draft legislation has been launched, which runs until 28 June 2023.
Privacy concerns
For some time now, there have been doubts about the legal validity of the UBO register. For example, the Privacy First Foundation in the Netherlands has brought summary proceedings against the state (read more about this here Doubts over the legal validity of the UBO register ) and they subsequently lodged an appeal (see here The ‘Privacy First’ UBO Register loses its appeal ). The UBO register was also a topic of discussion outside the Netherlands. In Luxembourg, this prompted a judge to refer questions for a preliminary ruling to the CJEU.
At the heart of both the Dutch and Luxembourg proceedings was the legality of the general public access to the UBO register.
Public data under the old scheme
Under the previous regulations, the following information, amongst others, was publicly available in the UBO register:
- first name and surname;
- year and month of birth;
- nationality;
- household status;
- nature and extent of the economic interest
In the Netherlands, anyone could access the register.
The bill
The draft bill, which has been put out for consultation, aims to amend, in the short term, the rules governing access to registered information on the UBO of both companies and other legal entities, as well as trusts.
The European Court of Justice has ruled that public access to the UBO register is contrary to the right to privacy. Since this ruling, the UBO register has been taken offline. As a result, it is no longer possible to check who the UBO of a company is or whether the UBO is registered. This is causing problems for banks, notaries’ offices and accountancy firms, amongst others. They are legally obliged to identify the UBO. It is therefore intended that these parties should be granted access to the UBO register. A swift amendment to the law is therefore necessary.