In December 2012, the Dutch Minister of Security and Justice (Minister van Veiligheid en Justitie) (the “Minister”) announced the wish to establish a central shareholders register. The Minister also recently announced that this central shareholders register would be maintained by the Trade Register of the Chambers of Commerce.
Preventing and combating abuse
The proposed introduction of a central shareholders register was prompted by the abuse of legal entities, which results in economic losses and the subsequent passing on of high public and other costs to the business community. This abuse includes using legal entities to perform certain illegal activities, to facilitate activities that violate certain standards, or to liquidate assets. According to the Minister, an efficient and effective system of monitoring, regulation, and enforcement is needed to prevent the abuse of legal entities and to combat the abuse that is already occurring. In this respect, regulatory and enforcement agencies must have access to as much relevant information as possible. The implementation of a central shareholders register will make it possible to identify the shareholders in a B.V. or a non-listed public limited company, as well as to ascertain which shares they hold.
The Trade Register is a database of companies that is maintained by the Chambers of Commerce. According to the Minister, the registration of information regarding the shareholders in legal entities would be an extension of the Trade Register’s current duties, making the Trade Register to be the best choice for maintaining the central shareholders register.
Not publicly accessible
The central shareholders register would not be publicly accessible, but would only be open to government agencies who play a role in monitoring, regulation and enforcement. For the time being, this would include the following government agencies: the Ministry of Justice Agency for Scrutiny, Integrity, and Screening (Dienst Justis), the Public Administration Probity Screening Agency (Bureau Bevordering integriteitsbeoordeling door het openbaar bestuur, also known as Bureau Bibob), the Financial Intelligence Unit (FIU), the Dutch Tax Authorities (Belastingdienst, special investigative services, security and intelligence services, the police, and the Public Prosecution Service (Openbaar Ministerie). Dutch civil-law notaries would also have access to the central shareholders register. Shareholders would also be permitted to access the information about them contained in the central shareholders register. According to the Minister, the shareholder privacy would be safeguarded by only permitting the limited access referred to above.
The central shareholders register will have to contain shareholder data based on (i) the registration in the Trade Register of all sole shareholders and (ii) the list of shareholders that legal entities maintain for corporation tax purposes. New shareholders will be registered based on information taken from the notarial deeds through which their shareholdings were acquired.
The Minister has indicated that the following data is necessary for monitoring, regulation, and enforcement purposes: (i) data related to the identity of the shareholders, (ii) characteristics of the shares, (iii) identification numbers of the legal entities and (iv) source documents (deeds with references and dates) underlying the registration.
Current shareholders register
In addition to the central shareholders register, the board of managing directors remains obliged to keep a register containing the names and addresses of all shareholders. In contrast to the central shareholders register, these regular registers also contain the names and addresses of those holding rights of pledge or usufruct on shares, as well as the names of those holding depositary receipts for shares to which a meeting right is attached.
For the time being, no action need be taken in anticipation of the legislative proposal regarding the central shareholders register, and no date has been announced regarding its introduction.