CJEU recent ruling on UBO registers – what is its impact in practice?

Published

Dec 12 2022

Written By

I am a Managing Partner of Bird & Bird offices in the Czech Republic and Slovakia where I coordinate teams of lawyers to deliver excellent professional advice and outstanding client service. I'm also the head of our Czech and Slovak Corporate and Banking & Finance Groups.

Lubomír Brecka

Counsel
Czech Republic

I'm a counsel in our Corporate, Commercial and Finance & Financial Regulation Practice Groups based in Prague.

Practices

Regions

Central and Eastern Europe

Countries

Czech Republic

On 22 November 2022, the Court of Justice of the EU ruled to annul the part of the Fifth AML Directive that required the Member States to ensure that certain data from the register of ultimate beneficial owners (UBOs) was made publicly available to the general public.

Following this decision, Member States should block public access to certain data in the UBO registers. Austria and the Netherlands have already done so the day after the judgment was delivered. The Czech Republic has not yet taken any action. However, it can be expected that the Czech UBO register will change its form in the future.

What is the practical impact of this decision on persons obliged to register their beneficial owners?

None. The obligation to register UBOs remains unchanged and most likely will not be changed in any way by the decision concerned.

And what is the primary penalty if you do not register your UBO?

Neither the UBO nor the shareholder who has the same UBO will be able to exercise their voting rights at the General Meeting or to make decisions as a sole shareholder. Furthermore, a company without a registered UBO will not be able to exercise its voting rights at the General Meeting or to make decisions as a sole shareholder. A company will not be able to pay dividends to the unregistered UBO or shareholder who has the same UBO, nor to a shareholder of whom it is the beneficial owner, nor to a shareholder who does not have a registered UBO.

What if you have a registered beneficial owner but the registration is no longer up to date?

It is necessary to align the entry in the UBO register with the actual situation without undue delay. In other words, the entry in the UBO register must be checked and updated regularly.