After years of waiting and well behind many EU member states, Italy too will have its Register of Beneficial Owners, as provided for in Legislative Decree No. 231/07 as amended by Legislative Decrees No. 90/2017 and 125/2019, respectively transposing the 4th and 5th European „anti-money laundering“ Directives.
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Carlo Carta, attorney at law in Milan
In fact, on May 25, 2022, the Decree of the Ministry of Economy and Finance No. 55 dated March 11, 2022 was published in the Official Gazette (121 of May 25, 2022). It establishes the provisions on the communication, access, and consultation of data and information on the beneficial ownership of companies, trusts, and related legal institutions.
This leads, therefore, to the formation of a Registry whose information will be accessible not only to the competent anti-money laundering Authorities, but also to those obliged to the provisions contained in Legislative Decree No. 231/07, who will be able to benefit from a valid operational and support tool precisely for the purposes of the application of customer due diligence measures and the related identification of beneficial owners.
1) Requirements for directors: a new telematic model is coming
Pursuant to this new Ministerial Decree, the directors of companies with legal personality (all forms of Italian companies) and the founder, if alive, or the subjects entrusted with the function of representation and administration of private legal persons (legal persons include among others trusts established according to the law no. 364 of 16 October 1989 and other similar entities, as well as private institutions like Foundations or Associations with legal personality, such as those enrolled in the registers of the relevant Italian Prefectures and Regions), will have to communicate to the Business Registry Office of the Chamber of Commerce with territorial jurisdiction, the data and information relating to beneficial ownership for the registration and storage in the autonomous section of the Business Registry.
For such communications, including the annual confirmation of data and information, the subjects called upon to comply with the provisions will use the single business communication model to be adopted by the Executive Decree of the Ministry of Economic Development (MISE) of November 19, 2009; however, the technical specifications of the electronic format of the communication will be identified by a precipitous Managerial Decree of the aforementioned MISE, within 60 days of the entry into force of the Ministerial Decree No. 55/2022.
Within 60 days of the entry into force of the MEF Decree, the Measure of the Ministry of Economic Development will be published in the Official Gazette certifying the operability of the system of communication of data and information on beneficial ownership.
At this point, it will be possible to proceed with the actual sending of communications within the next 60 days.
For those who will be registered or begin activities thereafter, the fulfillments must be completed within 30 days from the date of registration in the respective registry or, in the case of trusts, from the date of their establishment.
2) Violation of the reporting obligation
The competent Chamber of Commerce shall:
- ascertain and challenge the violation of the obligation to report data and information on beneficial ownership and impose the relevant administrative penalty.
- also using the operator’s IT system, monitor communications and self-declarations.
3) Who will have access to the register of beneficial owners?
With reference to the competent anti-money laundering Authorities, the Decree specifies that access is granted to the MEF, the sector Supervisory Authorities, the UIF – Financial Intelligence Unit, the Anti-Mafia Investigative Directorate, the Guardia di Finanza operating through the Special Currency Police Unit, as well as the Judicial Authority and the Authorities in charge of combating tax evasion.
For what concerns, on the other hand, the obliged subjects referred to in art. 3 of Legislative Decree No. 231/07 (among others, banks, insurance companies, lawyers, notaries, accountants, and other professionals), these may have access to the data and information contained in the „Beneficial Owners Register“ in order to optimize investigations related to the fulfillment of customer due diligence obligations, after a formal accreditation process.
In this regard, it should be pointed out that consultation of the „Beneficial Owners Register“ does not exempt obligated persons from assessing the money laundering risk to which they are exposed in the exercise of the specific activity carried out and from taking measures appropriate to that risk.
In addition, data and information on the beneficial ownership of legal entities and private legal entities in the autonomous section of the Business Register, will be publicly available among request and without limitation. In such cases, public access will concern the name, surname, month and year of birth, country of residence and nationality of the beneficial owner and the conditions from which the status of beneficial owner derives.
4) Final Considerations
The actual establishment of the Register of Beneficial Ownership will sanction Italy’s long-awaited accession to the so-called BORIS system „Beneficial Ownership Registers Interconnection System”. The System was initiated by EU Regulation 369/2021 for the purpose of performing the function of a central search service, by means of the interconnection of the national Central Registers of Beneficial Ownership and the European e-Justice portal through the European Central Platform.
All this, with the aim of ensuring greater transparency and efficiency at the EU level of actions to prevent money laundering and terrorist financing.