Final Implementation Decree UBO Register for trusts and FGR – 150-person limit for licensed FGRs – UPDATE

On May 2, 2022, the final Implementation Decree on the registration of beneficial owners of trusts and similar legal arrangements (the ‘Implementation Decree‘) was published in the Official Gazette. The Implementation Decree elaborates on a number of issues regarding the implementation of the obligation to maintain and centrally register information about the ultimate beneficial owner (UBO) of trusts and similar legal arrangements (the ‘Trust Register‘), including:


  • The definition of an UBO;
  • The classes in which the size of the UBO’s economic interest can be expressed in the Trust Register;
  • The retention periods of the information contained in the Trust Register;
  • The grounds on which a UBO may request that all (or part) of his/her information may be shielded; and
  • The competent authorities that have access to the Trust Register.

In our previous news release, we highlighted the most important consequences for investment funds structured as fund for joint account (fonds voor gemene rekening, (‘FGR‘)). In particular, the scope of the UBO definition plays an important role in this respect. The Implementation Decree introduces some nuance with regard to the UBO definition. We will explain this in more detail below.

  1. UBOs of an FGR?

On the basis of Article 3(1)(e) of the Wwft Implementation Decree 2018, the following categories of natural persons currently qualify, in any case, as a UBO of an FGR:


  1. The founder or founders of an FGR;
  2. the beneficiaries (i.e. the unitholders), or where the individuals who are the beneficiaries of an FGR cannot be determined, the group of individuals in whose interests an FGR is primarily established or operated; and
  3. Any other natural person who, directly or indirectly, through ownership or otherwise, exercises ultimate control over an FGR.

Given the definition described above, in principle all unitholders in an AIF or UCITS structured as an FGR will qualify as UBO. This would mean that fund managers who use an FGR will have to register all their participants in the Trust Register, even if it concerns an FGR with many relatively small participants. In addition, all changes in the UBO information must be reported to the Chamber of Commerce.

  1. Consultation Implementation Decree – 3% threshold

With a view to the practicability of the registration obligation, the consolation version of the Implementation Decree made a nuance with regard to participants. The Implementation Decree changed the UBO definition in such a way that only participants with an economic interest of at least 3% would qualify as UBOs. This meant that participants with an economic interest below the 3% threshold would not be registered in the Trust Register.

  1. Final version Implementation Decree – 150-person threshold

The 3% threshold has been dropped in the final version of the Implementation Decree. From the consultation responses, the legislator has concluded that the envisaged burden reduction for investment funds will not be achieved with a minimum threshold of 3%. Against this background, the legislator decided to replace this general lower limit with a specific possibility to specify the group of beneficiaries instead of the individual beneficiaries. This applies to investment funds in the form of an FGR that (a) are offered to 150 persons or more, (b) are managed by a manager with a license under Article 2:65 or 2:69b of the Dutch Financial Supervision Act (Wet op het financieel toezicht, (‘Wft’)), and (c) are under the supervision of the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten, (‘AFM’)) and/or the Dutch Central Bank (De Nederlandsche Bank, (‘DNB’)) (hereinafter: the ‘licensees’). In these cases, when registering the beneficiaries, a description of the group in whose interest the FGR is primarily established or operates will suffice. For example, “unitholders investment fund.” If a FGR does not fall under this exception, then all unitholders with an interest of 0% or more will still need to be included in the Trust Register. Examples are exempted funds managers who fall under the so-called ‘light regime’ (see Article 2:66a Wft), or licensees who offer a fund, in the form of an FGR, to less than 150 persons.

  1. Impact

The intended burden reduction will only be achieved for part of the market. Exempted managers or licensees offering to less than 150 persons will still have to register all participants (or have them registered) in the Trust Register, with the associated monitoring obligation and administrative efforts.

It is striking that the exemption applies if an FGR is offered to more than 150 persons. The legislator wanted to align this with the exemption regime as included in Article 2:66a Wft. This is somewhat awkward, because it is precisely the exempted manager who now must fully comply with the notification obligation.

It seems to us, moreover, that licensees can invoke this condition relatively easily, since an offer to more than 150 persons may already be in place if the fund documentation is included on the website.

It is not clear at this time when the Trust Register will become operational. It is expected that this will be sometime in Q3 2022. Once effective, the trustee of the FGR, presumably the manager of the FGR, will have three months to register the UBOs of the FGR.