Healthcare providers must register their "UBO" with the Chamber of Commerce (CoC) as of Sept. 27, 2020. What a UBO is, what exactly must be registered and other frequently asked questions from healthcare providers can be read in this Q&A.
UBO is the abbreviation for Ultimate Beneficial Owner, which in Dutch can be translated as ultimate stakeholder. A UBO is the natural person who ultimately owns or controls the healthcare provider. This can also include several individuals. Who these individuals specifically are depends on the legal form of the healthcare provider.
Due to European anti-money laundering regulations, the Netherlands is required to establish a register in which the UBO of each legal entity is centrally recorded. The Chamber of Commerce is responsible for the management of this UBO register, which will open as of Sept. 27, 2020. As of that date, almost all legal entities in the Netherlands are required to register their UBO in this register within 18 months (deadline: March 27, 2022), including legal entities in healthcare.
This is a different UBO registration than that of Vektis. Healthcare providers who have already submitted their UBO to Vektis must therefore also submit their UBO data to the CoC as of September 27.
For health care providers in the form of a foundation, cooperative or association, it involves the natural person who:
Owns (in)directly more than 25% of an ownership interest; or
can (in)directly exercise more than 25% of the votes in decision-making to amend the Articles of Association; or
has effective control
By "ownership interest" is meant the right to distribution of assets, reserves or a liquidation surplus, such as by certificates.
When deciding to amend the articles of association, it is irrelevant whether that decision must be approved by another body of the healthcare provider, such as the supervisory board.
The legislature has not made clear what it means by "actual control," but it is generally assumed that it refers to (economic) control over the health care provider in a manner other than through an ownership interest or amendment to the articles of incorporation. No percentage has been mentioned, but it seems logical that it refers to dominant/passing control.
For health care providers in the form of a limited liability company, it involves the natural person who:
(in)directly holds more than 25% of the shares, voting rights or ownership interest in the BV; or
(in)directly holds other resources
The criteria of shares, voting rights and ownership interest are alternative criteria. Therefore, if a natural person holds less than 25% of the shares but more than 25% of the votes, he is a UBO.
By "ownership interest" is meant the right to distribution of assets, reserves or liquidation surplus.
'Other means' refers to consolidation conditions from Article 2:406 of the Civil Code. This refers to dominant control. An example is the natural person who, as a shareholder, can appoint or dismiss more than 50% of the directors or supervisory directors.
For healthcare providers in the form of a partnership or VOF, such as a specialist partnership, for example, the natural persons involved are:
Hold (in)directly an ownership interest of more than 25% in the partnership or VOF; or
may (in)directly exercise more than 25% of the votes in decision-making to amend the partnership or VOF agreement or in the execution of the partnership or VOF agreement other than by acts of management, to the extent that the agreement provides for majority voting; or
has effective control
By "ownership interest" is meant the right to distribution of assets, reserves or liquidation surplus.
The legislature has not made clear what it means by "actual control," but it is generally assumed that it refers to (economic) control over the health care provider in a manner other than through an ownership interest or amendment/implementation of the partnership or VOF agreement. No percentage is mentioned, but it is reasonable to assume that it is predominant/passing control.
If no individual meets the UBO criteria, the healthcare provider's "senior executives" must be registered. These individuals are called "pseudo-UBO.
In principle, all statutory directors of the healthcare provider are registered as pseudo-UBO. An exception applies to healthcare providers in the form of a partnership or VOF. Since they do not have a statutory board, they must register all partners/partners as pseudo-UBO.
Thus, in a typical healthcare foundation with more than three statutory directors, all statutory directors must be registered as pseudo-UBO.
Another example of pseudo-UBOs are the partners of a medical specialty company that has opted for the transparent model and thus has the form of a partnership. In the case of an MSB in the form of a cooperative, on the other hand, it is not the members that must be registered, but all statutory directors.
It happens that the director of a healthcare provider or a partner/ associate is not a natural person but a legal entity, for example within healthcare groups or a PH-BV within a specialist partnership. In that case, any natural person who is a director of that legal entity-director is registered as a pseudo-UBO.
A healthcare provider must record the following details of its (pseudo) UBO:
BSN number
Full name, month and year of birth, country of residence and nationality
Day of birth, place of birth, country of birth and home address
Nature and extent of economic interest held
The Chamber of Commerce is writing to all healthcare providers in the coming period asking them to register their (pseudo) UBO by March 22, 2022. This can be done online (www.kvk.nl/inschrijven), by mail or through a lawyer/notary. The Chamber of Commerce does not charge for UBO registration.
Copies of documents must accompany the registration, based on which the Chamber of Commerce can verify the UBOs' data, for example, a passport and a partnership agreement.
If the Chamber of Commerce rejects a registration, the healthcare provider can object and appeal it, as the Chamber of Commerce's decision is a decision within the meaning of the General Administrative Law Act (Awb).
For each (pseudo) UBO, the following information is publicly available to everyone:
Full name, month and year of birth, country of residence and nationality
Nature and extent of economic interest held.
Documents filed with the Chamber of Commerce, such as a passport and partnership agreement, are not available to everyone.
Per (pseudo) UBO, the following data can only be viewed by the Financial Intelligence Unit (FIU-Nederland) and competent authorities, such as the Tax and Customs Administration, FIOD and AFM:
BSN number
Day of birth, place of birth, country of birth and home address.
These agencies can also view documents filed with the Chamber of Commerce.
The maximum penalty or fine for registering (not on time) a (pseudo) UBO is 21,750 euros. It is also possible (in exceptional situations) for a prison sentence of up to two years or community service to be imposed.
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