Legitimate interest and access to the UBO-register

Following the recent jurisprudence of the Court of Justice of the European Union, the Belgian legislator introduced on 17 February 2023 new provisions with regards to the legitimate interest that natural and legal persons have to demonstrate to obtain access to the Belgian UBO-register. 

On 22 November 2022, the Court of Justice of the European Union had ruled the access to the UBO-registers for the general public, as foreseen in article 30 of Directive 2015/849 (the Directive) invalid. Since then, the Belgian UBO-register was therefore no longer accessible to the public. Only competent authorities and subject entities could still access the UBO-register.

Before this Court decision, everyone had the possibility to access the UBO-register by identifying themselves with their ID-card or a valid European login method and could thus consult all available information. This meant that the name, nationality, month and year of birth, country of residence, nature and extent of the beneficial interests of registered ultimate beneficial owners were out in the open for everyone to consult. This personal and patrimonial data allowed third parties to draw up a profile on a person’s wealth and the characteristics on the investments he or she made, which facilitated abuse. 

The Court of Justice concluded that this public access interfered with the right to respect for the private life and the right to protection of personal data (articles 7 and 8 of the Charter of Fundamental Rights of the EU) of the registered UBO’s. Although the Commission argued that the public availability of that information could contribute to (further) building trust in the integrity of businesses and could contribute to the combat of the misuse of legal entities, the Court of Justice did not accept these arguments.

In an earlier version of the legislation, the Directive foresaw ‘access to any person that can demonstrate a legitimate interest’. Because the European Commission found defining ‘a legitimate interest’ too difficult and feared that the application of a definition thereof would entail arbitrary decisions, it was replaced by ‘any member of the public’ (the Amendment).

In a statement issued on 8 December 2022, the Court of Justice had clarified that the invalidity only affected the Amendment and that the earlier version of the Directive was thus again applicable. The UBO-register should be accessible to any person with a “legitimate interest”. According to the Court of Justice, the definition of legitimate interest should include press, civil society organisations and persons entering into transactions with subject companies.

On 17 February 2023, the Belgian legislator introduced new legislation with regards to the legitimate interest that natural and legal persons have to demonstrate to gain access to the UBO-register. The following three categories of persons are now assumed to have a legitimate interest – all of which are related to the fight against money laundering and terrorist financing:

  • persons involved in activities, in a sustainable and effective manner, related to the fight against money laundering and terrorist financing;
  • persons acting in court in the context of the fight against money laundering and terrorist financing with a view to defending an interest related to that purpose or activities; or
  • persons who will engage in an economic relationship or carry out transactions with a subject entity and who are active in the fight against money laundering and terrorist financing.

As a consequence, this new legislation drastically reduces the scope of access to the UBO register, which remains available only to natural and legal persons involved in the fight against money laundering and terrorist financing. 

Any access request to the UBO register has to include relevant documents setting out the reasons for the request and demonstrating the legitimate interest. It is not clear yet, which documents will be sufficient. Hopefully, a new update of the UBO register’s FAQ will provide more clarity on this soon.

The Lydian Corporate team remains available to assist you with all UBO-related formalities. Please note in this respect that the obligation remains to confirm the information in the UBO register once a year and to update the information within one month after a change.

Florence Colpaert

Maxine Daems