Anti-Money Laundering: access to the Italian Register of beneficial owners is suspended

published on 19 June 2024 | reading time approx. 3 minutes

In December 2023, the fiduciary associations representing the interests of trustees filed a series of claims to request the annulment of the package of decrees regarding the Register of beneficial owners, in particular the Inter-Ministerial Decree No. 55 of 11 March 2022, the Decree of the Ministry of Enterprise and Made in Italy (MIMIT) dated 29 September 2023, as well as the ‘Operational Manual for the telematic transmission of the communication of the beneficial owner to the offices of the company registry’.

Following these claims, the Regional Administrative Court Lazio by order No. 8083 of 6 December 2023 granted the claimants' precautionary petition recognizing “worthy of protection the claimant's interest in maintaining the res adhuc integra until the definition of the judgment on the merits” and to that effect suspended the effectiveness of the MIMIT’s Decree. As a result, the deadline for the first communication of beneficial owner to the Register was suspended, which, according to the relevant regulations, had to be made within 60 days from the date of publication in the Official Gazette of the MIMIT's Directorial Decree of 29 September 2023, i.e. by 11 December 2023.

On 9 April 2024, the Regional Administrative Court Lazio with six substantially identical sentences (No. 6837, 6839, 6840, 6841, 6844, 6845), rejected the claims filed by said associations and as a result the deadline for the communication of the beneficial owner to the Register was postponed to 11 April 2024.

Following the appeal of some of the sentences by the associations, the Council of State on 17 May 2024, upon an initial summary examination, found that the issues raised by the parties were particularly complex, and required an in-depth examination of the merits. Therefore, with decisions No. 3366, 3367, 3532, 3533, 3534, it ordered the suspension of the enforceability of the sentences of the Regional Administrative Court Lazio of 9 April 2024. However, since this decisions came after the expiry of the deadline to provide for communication set for 11 April 2024, (only) the consultation of data and information on actual ownership, as well as requests for accreditation by the obliged parties and requests for access by the legitimised parties were suspended. It is worth noting that it is still possible to submit communications to the Register and that the obligation for companies to update the information communicated and to have up-to-date documentation is not suspended to date.

Following the expiry of the deadline for the submission of communications to the Register of beneficial owners, there has been a debate as to whether the territorially competent Chambers of Commerce can issue penalties for late communications pursuant to Article 2630 of the Civil Code, which states that ‘Whoever, being obliged to do so by law because of the functions he performs in a company or in a consortium, fails to make, within the prescribed time limits, reports, communications or filings with the companies register shall be punished with a pecuniary administrative sanction ranging from EUR 103 to EUR 1,032. If the report, communication or filing is made within thirty days following the expiry of the prescribed time limit, the pecuniary administrative sanction is reduced to one third'.

In view of the abovementioned, on 23 May 2024 the National Council of Certified Public Accountants and Accounting Experts (CNDCEC) published a statement in which it ruled out that ‘the territorial Chambers of Commerce may proceed to ascertain alleged violations and, consequently, to apply penalties for omitted or late reporting by obliged parties’. This is because the Council of State's conclusions could sweep away the entire system of the Register of beneficial owners, including the obligation to make the communications on which the penalties would be based.

However, the MIMIT, due to the complex judicial case, has not taken a position, leaving ‘to the prudent appreciation of the Chambers of Commerce any useful initiative to facilitate the correct fulfilment of the disclosure obligations in question’. Consequently, since the CNDCEC's opinion is not binding and MIMIT has not adopted a position, some Chambers of Commerce may well decide to issue penalties in the event of omitted or late disclosure of the beneficial owner.