A process aimed at optimizing instruments against money laundering of income from criminal activities and terrorist financing has been effective in all Member states for some years and Legislative Decree no. 231 dated 21 November 2007 and its further amendments and integration is part of this process.
Ministerial Decree no. 55 dated 11 March 2022 introduced some provisions concerning the disclosure of information on beneficial owners of companies with legal personality which are subject to the obligation to register with the Companies’ register under art. 2188 of the Italian Civil Code, of private legal persons subject to the obligation to register with the Companies’ register under Presidential Decree no. 361/2000, of trusts producing legal effects being relevant for tax purposes, and of legal entities similar to trusts.
The effectiveness of the system has been subject to the issue of diverse implementation provisions, which have almost totally completed the application framework of the so-called “Register of beneficial owners”.
To date, however, two provisions are still missing: i) a technical disciplinary provision, to be issued by InfoCamere S.C.p.A. and subject to a prior check by the Data Protection Supervisor, aimed to define proper technical and organizational measures to ensure a security level that is adequate to the relevant risk, pursuant to the domestic regulation on general data protection; ii) a provision by the Ministry of Enterprises and Made in Italy (MIMIT) to certify the effectiveness of the system, and all entities subject to the obligation will have to submit proper communications to the Companies’ register within 60 days after its publication in the Official Gazette.
To date, the technical specifications of the electronic format for the disclosure of data on beneficial owners have been approved with decree by the Ministry of Enterprises and Made in Italy no. 93 dated 20 April 2023. This is one of the provisions under art. 3, para. 5 of Ministerial Decree no. 55/2022, establishing that communications relevant to beneficial owners must be submitted to the Office of the Companies’ register through the so-called “Comunicazione unica d’impresa” form and include the technical specifications provided by the MIMIT.
Besides introducing the technical specifications, the above decree also provides indications on the accessibility of such information to the public. Judgment of the Court of Justice of the European Union dated 22 November 2022 declared as invalid art. 2, point 5, letter c) of Directive no. 2018/843, which provided that information on beneficial owners of companies and other legal entities are in any case accessible to the public. In fact, there was no proof that public access to data included in the Register can allow achieving the objectives provided under the anti-money laundering regulation, but it can rather imply a breach of the right to safeguard private life, as well as of the right of general data protection provided under art. 7 and 8 of the Charter of fundamental rights of the European Union.
Through further decrees, published in Official Gazette no. 149 dated 20 June 2023 and dated 16 March 2023 and 20 April 2023, respectively, the forms for the issue of – even digital – certificates and copies relevant to information on beneficial owners and the amounts of administration fees for the fulfilments required at the Companies' Register office have been approved.
As mentioned above, the whole process is aimed at the identification of the beneficial owner, which represents the main difficulty that entities concerned by the anti-money laundering regulation must face – beyond following the technical operating procedures of the Register.
We would like to specify that the identification of the beneficial owner is not a consequence of the effectiveness of the Register, but it is an already established fulfilment, since it is one of the customer due diligence requirements under Legislative Decree no. 231/2007.
To this regard, Study 1_2023 B of the Anti-money laundering commission of the National Council of Notaries provides a synthesis of the complex and heterogeneous national and supranational regulation concerning beneficial owners.
A special note must be made on the procedure to identify the beneficial owner of private legal persons – which have legal personality as they are registered with the register provided under Presidential Decree dated 10 February 2000, no. 361 – also by virtue of what is provided for not-for-profit sector entities which, pursuant to art. 22 para. 1 del of Legislative Decree dated 3 July 2017, no. 117 acquire legal personality (departing from Presidential Decree no. 361/2000) through their registration in the Unified register of the not-for-profit sector (RUNTS - Registro Unico Nazionale Terzo Settore).
For such entities, the regulation identifies the following as possible beneficial owners:
The founders, where alive;
The beneficiaries, where identified or easily identifiable;
The holders of legal representation, management and administration powers.
The above definitions, as specified in Study 1_2023 B previously mentioned, are more suited for foundations (where a still alive founder or explicit beneficiaries could be identified), while a beneficial owner could not be easily identifiable based on a quantitative or economic criterion. Therefore, lacking easily identifiable beneficial owners, directors of associations should identify as beneficial owners all those persons holding legal representation, management, and administration powers, which is substantially the same result as that achieved based on a “residual” criterion (art. 20, para. 5 of Legislative Decree no. 231/2007), applicable to any non-natural person.
The same can be said for the identification of the beneficial owner of special entities, such as widely held cooperatives, where voting rights disregard the participating share held. In fact, since neither a >25% share, nor the person holding control of the company can be determined, the beneficial owner is identified as the person holding representation or administration powers.
In conclusion, the Ministry of Enterprises and Made in Italy will soon make the Register of beneficial owners effective. Such register will include the information resulting from customer due diligence activities carried out by all entities subject to the application of the anti-money laundering regulation. The omitted communication of information on beneficial owners to the Companies’ register will be punished with a fine ranging from 103 to 1.032 Euro.