In previous blogs (see here and here) we wrote (a.o.) about the Dutch UBO register that would be introduced as of 10 January 2020 and the implementing Act amendment to the fourth Anti-Money Laundering Directive (the “4AMLD Implementing Amendment Act”) that would take effect from 10 January 2020. However, neither of these deadlines has been met. The relevant bills were adopted by the House of Representatives on 10 December 2019 and were then submitted to the Senate. A final important amendment (only available in Dutch) in the Act regarding the UBO register was the inclusion of an exception to lawyers and civil-law notaries confidentiality obligation to comply with the reporting obligation (Section 10c(4) of the new Money Laundering and Terrorist Financing (Prevention) Act (Wet ter voorkoming van witwassen en financiering van terrorisme).
On 28 January 2020, the Senate’s Finance Committee carried out a preparatory investigation* of the introduction of the bills; this was the first phase in the written preparation by the Committee. Provisional reports were drawn up of this and adopted on 4 February 2020 (see here for the 4AMLD implementing amendment Act and here for the UBO register legislative bill – only available in Dutch). It emerges from these reports that the preparatory investigation has given rise to a number of comments and questions, for example regarding the increase in the number of institutions subject to a reporting obligation due to extension of the scope of the directive, and the effects thereof.
The questions relating to the 4AMLD Implementing Amendment Act were answered on 14 February 2020. The Memorandum of Reply (only available in Dutch) deals, among other things, with extension of the scope of the directive, and its implications for the Financial Intelligence Unit (the “FIU”). It follows from the Memorandum of Reply that it is not clear in advance how many additional reports of unusual transactions can be expected, but that consultations are taking place with the FIU as to whether additional capacity will be necessary.
The questions relating to the UBO register legislative bill were answered on 17 February 2020. The relevant Memorandum of Reply (only available in Dutch) clarifies which natural persons are to be designated as UBO or pseudo-UBO. Clarification concerns, among other things, the scope of the term “pseudo-UBO” (“If senior management staff are to be designated as UBO, this refers to each director who is a member of the board”), as well as how it is to be determined whether a natural person is a UBO of a trust office foundation (Stichting Administratiekantoor) (“When a trust office foundation only administers and manages for the benefit of the depositary receipt holders, the depositary receipt holders will generally not be designated as UBO of such trust office foundation. A depositary receipt holder is always UBO of the underlying company if the depositary receipts held by him represent an ownership interest of more than 25%”).
In the meantime, the European Commission has announced on 12 February 2020 that it has initiated infringement proceedings against a number of Member States, including the Netherlands, for failing to implement the amended Anti-Money Laundering Directive on time. The European Commission has given the Netherlands two months to meet its obligations and rectify this omission.
Despite the deadline having expired on 10 January 2020, the Senate’s Finance Committee decided on 18 February 2020 that it nevertheless considers further investigation to be necessary. In a letter dated 21 February 2020 (only available in Dutch), the Minister of Finance requested the Senate to deal speedily with the two bills. In doing so, he suggested that the Senate no longer deals with the bills jointly but proceed to deal with them separately, so that some of the legislation will comply more quickly with the European implementation obligation. In response to this, the Senate’s Finance Committee decided on 3 March 2020 - given that the UBO register legislative bill has been delayed due to the request for an opinion from the Council of State - to round off consideration of the 4AMLD Implementing Amendment Act by means of a plenary procedure.
The request for an opinion (only available in Dutch) regarding the UBO register legislative bill, which was also issued on 3 March 2020, asks for information on how the registration obligation for natural persons associated with churches relates to the GDPR - in which religion and beliefs are regarded as special personal data, the registration of which is basically prohibited - and other regulations such as the 2007 Trade Registers Act (Handelsregisterwet 2007) and the Public Benefit Organisation (ANBI) regulation, which also establishes a link with the privacy (religious convictions) of directors.
A reply to the explanation request was provided on 15 April 2020:
“Within the scope offered by Article 30(9) of the Directive in particular, in the opinion of the Division the fact that personal data is collected in respect of UBOs of religious denominations must also be taken into account when interpreting it. Disclosure of the personal data of a director of a religious denomination results in it being possible to infer the religious or philosophical convictions of the person concerned from his or her membership of the board of that denomination. That circumstance may play a role in assessing whether there is a case for utilising the shielding option in an individual case. Such directors may, after all, run disproportionate risks or be exposed in some other way to undesirable behaviour, such as intimidation, harassment, or blackmail.
In the Trade Register, the ANBI regulation, and the UBO register, the same problem arises that disclosure of personal data of directors of religious denominations entails the possibility of the religious or philosophical convictions of those persons being inferred. However, the differences in approach between, on the one hand, the UBO register and, on the other, the Trade Register and the ANBI regulation can be explained by the fact that the UBO register stems from legally binding EU legislation.”
Detailed written questions (only available in Dutch) were asked about the 4AMLD Implementing Amendment Act on 19 March 2020; these were answered in a Further Memorandum of Reply (only available in Dutch) on 10 March 2020. This memorandum addresses, among other things, the extent to which Dutch legislation and regulations go beyond what is intended by the directive, the way in which Member States can learn from one another with regard to combating money laundering and terrorist financing, and what effect the compliance and supervision costs for providers of crypto services will have on (smaller) Dutch companies. The bill was adopted by the Senate on 21 April 2020. It is not yet known when the law will enter into force and will be determined by royal decree.