Adoption of the Regulation for the Submission to the Register and Access of the Beneficial Owner’s Information (Disclosure of Beneficial Ownership — Italy)

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The end of May marked the completion of the legislative framework of Beneficial Ownership disclosure discipline in Italy. Specifically, the Decree no. 55/2022 – adopted on March 11, 2022 by the Minister of Economy and Finance (MEF) in agreement with the Minister for Economic Development – has been published in the Italian Official Gazette (MEF Decree) on May 25, 2022 and entered into force on June 9, 2022.

The MEF Decree outlines the following rules concerning the Beneficial Owner:

• the data and information to be provided on Beneficial Ownership of companies, trusts and similar legal arrangements established or domiciled in Italy, as well as the procedure and terms to communicate the required information for their registration and preservation either in the autonomous section or in the special section of the Companies Register;
• the procedure to access Beneficial Ownership information by the Authorities and by the Obliged Entities;
• the procedure for consultation by the public and by any individual or legal entity, including those representing widespread interests, of the Beneficial Ownership information and data;
• the fees for the access and consultations to be applied to entities other than Authorities;
• the provisions for ensuring the protection of data processing and information.

Although the MEF Decree entered into force on June 09, 2022, the full implementation of the rules provided for by the MEF Decree is subject to:

• the issuance of the ministerial act containing the technical specifications for the electronic filing of the data and information concerning Beneficial Ownership;
• the publication on the Official Gazette of the MEF communication attesting that the electronic platform for the communication of the data and information concerning Beneficial Ownership is operative (MEF Communication).

According to the MEF Decree the two above mentioned conditions should be completed within 60 days from its entering into force.

Beneficial Ownership Disclosure — Filing Procedure and Terms

Article 3 of MEF Decree identifies the individuals responsible for the compliance with the Beneficial Ownership communication requirements as follows:

• the directors of companies;
• the founder, if alive, or the individuals entrusted with the representation and administration of private legal entities;
• the trustee of trusts or related legal institutions.

Individuals under a and b shall communicate to the competent office of the Companies Register the Beneficial Owner information requested by Article 22, para. 3 and 4 of the Italian AML Law to be registered in the autonomous section of the Companies Register.

Individuals under c shall communicate to the competent office of the Companies Register the Beneficial Owner information requested by Article 22, para. 5 of AML Law to be registered in the special section of the Companies Register.

The above individuals are also required to file the following:

• the information on any changes in Beneficial Ownership within 30 days of such change;
• yearly, a declaration confirming the Beneficial Ownership data and information. For companies with legal status, the declaration may filed together with the filing of the annual balance sheet.

Beneficial Ownership Disclosure — Term for the Initial Filing

Publication of the MEF Communication is expected within 60 days after the entry into force of the MEF Decree.

For existing companies, private legal entities, trusts and similar legal arrangements, the initial filing disclosing required Beneficial Ownership data and information shall be made within 60 days after the publication of the MEF Communication.

Companies and private legal entities, trusts and related legal institutions that are incorporated after the MEF Communication date shall make their initial filing of required Beneficial Owner information within 30 days from their registration in the Companies Register or within 30 days of their incorporation, accordingly.

Beneficial Ownership Disclosure – Information and Data to be Disclosed

Article 4 MEF Decree specifically provides for the Beneficial Owner information that shall be indicated in the communication to be filed.

In addition to personal data and citizenship of the Beneficial Owner, the following information shall be disclosed:

• With regard to companies:
  • the equity interests held by the Beneficial Owner; or
  • should the Beneficial Owner not be identified through the ownership criteria, how control of the company is exercised; or
  • should the residual criteria provided for by Article 20, para 3 and 5 of AML Law be utilized to identify the Beneficial Owner, his powers of legal representation, administration or management of the company.
• With regard to private legal entities:
  • the name of the entity;
  • its registered office and, if existing, its administrative office;
  • its certified e-mail address.
• With regards to trusts and similar institutions:
  • the trust’s name;
  • date, place and references of the deed of incorporation.

When filing the Beneficial Owner information, the filing individual shall also disclose any exceptional circumstances that justify the non-accessibility of Beneficial Ownership information by the general public.

In addition, accredited Obliged Entities shall promptly report to the Chamber of Commerce having jurisdiction any discrepancies between the Beneficial Ownership information obtained as a result of consulting the autonomous and special sections of the Companies Register and that acquired during their customer due diligence, pursuant to Articles 18 and 19 of the AML Law. The reports acquired are consultable by the Authorities entitled to access, granting, in any event, the anonymity of the reporting Obliged Entities.

Violation of Beneficial Ownership Disclosure Requirements — Sanctions

Since data and information on Beneficial Ownership are rendered by self-declaration pursuant to Articles 46 and 47 of the Consolidated Act of Legislative and Regulatory Provisions on Administrative Documentation, set forth in Presidential Decree no. 445/2000, the competent Chamber of Commerce is entitled to conduct inspections on the self-declarations and, in case of violation of the disclosure obligation, shall proceed to the assessment, notification and imposition of an administrative fine ranging from Euros 103 to Euros 1,032. If the report, communication or filing is made within 30 days after the expiration of the prescribed time limit, the administrative sanction is reduced to one third.

Beneficial Ownership Information — Collection and Access

Article 5 MEF Decree provides that the Authorities identified by the AML Law are entitled to access the data and information on the Beneficial Ownership in the autonomous section and the special section of the Companies Register through technical and operational procedures regulated by an agreement to be executed by each Authority with the Italian Union of Chambers of Commerce, Industry, Crafts and Agriculture – the so-called “Unioncamere” – and the operator.

Article 6 of the MEF Decree provides that the Obliged Entities identified by the AML Law are entitled to access the data and information on the Beneficial Ownership in the autonomous section and the special section of the Companies Register upon prior accreditation in order to consult the data and information on the Beneficial Ownership to implement the requirements concerning the adequate verification of their customers.

Article 7 of the MEF Decree on access by the public and by any individual or legal entity provides that:

• Beneficial Ownership’s data and information of companies and private legal entities registered in the autonomous section of the Companies Register shall be accessible to the public upon request and without limitation, except in case of existence of exceptional circumstances justifying the exclusion of access to the general public.
• Beneficial Ownership’s data and information of trusts and similar institutions registered in the special section of the Companies Register shall be made accessible to the public who is entitled to access on the basis of the submission of a motivated request evidencing the existence of the prerequisites for the access to the Chamber of Commerce having jurisdiction.

In the event that the communication of Beneficial Ownership data and information contains the indication of exceptional circumstances justifying the exclusion of access to the general public, the Chamber of Commerce having jurisdiction when receiving a request of access shall transmit the request for access to the interested party by certified e-mail. Within 10 days of receipt of the notice, the interested party may transmit by certified e-mail its objection to the access.

The Chamber of Commerce evaluates on a case-by-case basis the exceptional circumstances represented by the interested party ‒ i.e., (i) if the access would expose the Beneficial Owner to a risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation or (ii) in the event the Beneficial Owner is an incapacitated person or a minor, provided any such risk is deemed to be disproportionate compared to the right of access ‒ and, if necessary, excludes access. The motivated access denial shall be communicated to the applicant within 20 days of its request for access, and in the absence of an appeal, access shall be deemed denied.

With regard to the modalities of dialogue with BORIS, the technical specifications set forth in Commission Implementing Regulation (EU) no. 369/2021 apply.

Beneficial Ownership Information – Data Treatment and Protection Measures

The data controller is the Chamber of Commerce having jurisdiction to receive communications of data and information.

Data and information are available in the autonomous section and the special section of the Companies Register for a period of 10 years from either the last notification of their change or the last annual confirmation.

With regard to the information disclosed under exceptional circumstances that preclude access to the Beneficial Owner information, the operator is required to store them in a separate section of the platform. It must also take specific technical and organizational measures to ensure selective access to the personal data only by those individuals authorized by the Chamber of Commerce on a case-by-case assessment, and it shall make the personal data unintelligible to anyone not authorized to access it through the adoption of cryptographic techniques.

Impact on Companies

Although the MEF Decree is formally entered into force on June 9, 2022, it is not clear when the above provisions will actually be implemented since the MEF Decree requires the prior issuance of (i) the ministerial act for the electronic filling of data and information concerning Beneficial Ownership, and (ii) the MEF Communication.

Considering that the full set of rules should be implemented in the next months, taking into consideration the initial filing deadlines and the sanctions for non-compliance, it is advisable that all entities subject to the Beneficial Ownership disclosure obligation urgently adopt specific compliance procedures and designate a director and/or an officer charged with the collection, the storage and the updating of the Beneficial Owner’s information. Transparency of ownership of legal entities and arrangements becomes especially important for the national authorities during a time when compliance with international sanctions and fighting financial crimes is an issue of national security.