A bill to implement the “ultimate beneficial owner” (UBO) registry in the Netherlands is expected to be presented soon, but given a recent decision of the French Constitutional Court, there are questions for the Dutch government to consider with regards to a publicly available UBO registry.
The French Constitutional Court (Cour Constitutionnel) in October 2016 held that a public registry—where data from certain trusts with ties to France are recorded—was in conflict with the French Constitution, and in particular with Article 2 of the Declaration of the Rights of Man (Déclaration des droits de l’homme et du citoyen) dating from 1789.
A U.S. resident of France had initiated the proceedings because she believed that the publication of her personal data in the public registry compromised her privacy. The French court basically agreed, and declared the public registry was unconstitutional. Accordingly, the data is no longer publicly accessible.
What are the implications of the judgment by the French Constitutional Court for the Dutch “ultimate beneficial owner” (UBO) registry, and the rule that all EU Member States must implement by virtue of the fourth European Anti-Money Laundering Directive? While the French judgment has no legal force in the Netherlands, it may nevertheless foster the idea that a publicly accessible UBO registry is not necessarily consistent with Dutch law. A bill to implement the UBO registry is expected in the Netherlands shortly. Earlier this year, the Ministry of Finance announced that the Dutch UBO registry would be publicly accessible.
The Dutch government may need to consider how to limit access to the UBO registry to persons that have no legitimate interest. Without this, it does not necessarily appear that such a public registry would be permissible. In addition, there is a question as to whether the Netherlands would want to introduce a public UBO registry when a country (like France) has deemed a similar registry with such a public character to violate the fundamental rights of French citizens.
Read an October 2016 report prepared by the KPMG member firm in the Netherlands: French Constitutional Court: public trust registry is in conflict with the French Constitution
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