Register of ultimate beneficial owners – new fulfilments for Italian companies

Article 21(1), of Legislative Decree no. 231/2007, as amended by Legislative Decree no. 90/2017 and more recently by Legislative Decree no. 125/2019, states that all companies and other entities which are bound to be recorded in the Company registry, are required to register in a special section of the same Company Registry, information relating to their ultimate beneficial owners.

The same obligation is provided for by paragraph 3 of the same Article 21, also for trusts producing legal effects relevant for tax purposes pursuant to Article 73 of Presidential Decree 917/1986 and for similar legal institutions established or resident in Italy.

As to the creation of such special section, the first draft version of the implementing Decree prepared by the MEF (Italian Ministry of Economy and Finance) in agreement with the MiSe (Italian Ministry of Economic Development), provided that the first communication to the office of the Company Registry, should have been submitted by March 15, 2021.

The Decree received the favourable opinion of the Data Protection Authority on January 14. The deadline for sending observations, within the framework of the public consultation launched by the Treasury Department, expired on the last February 28. The Decree is currently being examined by the Council of State.

We can therefore assume that an extension of the original deadline for sending the beneficial owners declaration will be granted. As the decree has not been published, the obligation for companies is not yet in force.

While waiting for the new deadline, which may be extended to 30 April, it is worth bearing in mind that:

• those in charge to notify the Office of the Company Registry for companies are the directors, for private legal persons the legal representatives (or who has executive powers), for foundations the founders, for trusts and similar legal institutions if alive, the trustees;
• the identification data (including residence) of the natural persons identified as beneficial owners must be provided pursuant to Article 20 of Legislative Decree no. 231/07;
• for private legal persons and trusts/similar legal institutions, additional information is required as referred in the current wording of Article 4 of the draft decree.

As indicated in Article 21(2) of Legislative Decree no. 231/07, access to information on beneficial ownership will be granted to the MeF, the sector supervisory authorities, the FIU (Italian Financial Intelligence Unit) and the DIA (Anti-Mafia Investigation Directorate), the Guardia di Finanza (Italian finance police) – special currency police unit, the National Anti-Mafia and Anti-Terrorism Directorate, the Judicial Authority and the authorities responsible for combating tax evasion in the manner provided for by the MEF, the parties obliged by the anti-money laundering legislation, upon accreditation and payment of secretarial fees (this aspect will be regulated by an ad hoc technical annex) as well as the public, always upon payment of secretarial fees.

These obligations are part of the European framework set out in Directive (EU) 2015/849 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing. Within the European context, the Commission’s Implementing Regulation 2021/369 of March 1, 2021, which establishes the technical specifications and procedures required for the system of interconnection of central registers, has been issued very recently. We are therefore getting closer to achieve the objective of establishing a system for the interconnection of the central registers of beneficial owners of the Member States (Beneficial Ownership Registers Interconnection System – BORIS).