We are all familiar with increasing requests for personal information and documentation, for instances when we want to open a bank account or when we are involved in (real estate) transactions. On January 1, 2023 the Commercial Register Ordinance (Handelsregisterverordening) is effectively amended, obligating legal entities such as limited liability companies (N.V.’s or VBA’s) and foundations (stichtingen) to register its ultimate beneficiaries. For existing companies, the Ordinance provides for a grace period. The purpose of this amendment is to counter the use of the financial system for money laundering and terrorist financing.
Ultimate beneficial owners must be registered!
Effective January 1, 2023, the Commercial Register Ordinance obligates the registration of the so called ultimate beneficial owner (the “UBO”) with the Commercial Register (the “UBO Register”) of the Chamber of Commerce and Industry of Aruba. The UBO is defined as the natural person who ultimately owns or (effectively) controls an enterprise (onderneming), legal entity (rechtspersoon), trust and unincorporated funds (fonds zonder rechtspersoonlijkheid). This is generally the case when a person owns more than 25% of the shares or has more than 25% of the voting rights or is entitled to at least 25% of the estate of the relevant company.
What needs to be registered?
Regarding the UBO, personal number (resident of Aruba) or equivalents for non-residents, name, date and place of birth, residential address and nationality and the nature of the economic interest needs to be submitted for registration in the UBO Register. In addition, copies of documents supporting the information need to be deposited.
Who has to register?
The owner, director, general partner or trustee of the enterprise, legal entity, trust or fund are responsible for the registration, as well as the notary involved in the incorporation of a legal entity. A limited group of entities is excluded from the registration obligation, being the sole proprietorship (eenmanszaak), associations without legal personality (vereniging zonder rechtspersoonlijkheid) and ‘other legal entities under private law’, which includes owners’ associations and a very limited number of entities of a historical nature.
When does one need to register?
The registration needs to be initiated within one week after starting the enterprise or company’s activities or incorporation or establishment of the company. For existing enterprises, legal entities, trusts or funds, the registration needs to be finalized before June 30, 2024.
What are the consequences of non-compliance?
The Chamber of Commerce and Industry of Aruba is charged with the enforcement. Non- compliance may result in administrative enforcement, such as a penalty with a maximum of Afl. 100,000 per breach.
Is the UBO Register publicly available?
No. Only the FIU-Aruba and the Central Bank of Aruba have access to the UBO Register. Certain professional service providers, such as attorneys at law, civil law notaries, accountants, tax lawyers and real estate agents have access to a limited part of the information (name, month, year and place of birth, nationality and the nature of the economic interest) to enable their anti-money laundering and combating the financing of terrorism assessments.
Should you have any concerns or questions, VANEPS is certainly available to advice or to assist businesses in relation to the new legislation.
If you want more information on this topic, please contact one of our Corporate/M&A lawyers or email info@vaneps.com.
