Anti-Money Laundering: The register of the beneficial owners in Italy is operational

published am 10. October 2023 | reading time approx. 5 minutes

Following the publication of the decrees implementing the Ministerial Decree No. 55 of 11 March 2022, the register of the beneficial owners, in short UBO-Register, (Registro dei Titolari Effettivi) in Italy has finally become operational, and, from 9 October 2023, it obliges entities operating in Italy to report data and information concerning their beneficial ownership.

What is the UBO-Register? »
Who has to report beneficial ownership data? »
Which entities are excluded from the reporting obligation? »
What must be communicated? »
How is the communication made? »
When to communicate? »
What are the consequences if the communication is not made, is made late or is made falsely? »

What is the UBO-Register?

The UBO-Register is part of the territorially competent Commercial Register and consists of two sections in which information on beneficial ownership must be indicated:

the ordinary section contains data on beneficial owners of companies with legal personality (S.r.l., S.p.A., S.A.P.A., cooperatives, consortia and mutual aid societies) and private legal persons (recognised associations and committees, foundations)
the special section contains, instead, the data of beneficial owners of trusts producing relevant legal effects for tax purposes and similar legal institutions

Who has to report beneficial ownership data?

The obligation to report beneficial ownership data and information concerns:

the directors of companies having legal personality (including foreign corporations with secondary offices in Italy^[1])
the founder, if alive, or the persons entrusted with the representation and administration of the private legal persons
trustees of trusts producing relevant legal effects for tax purposes or of similar legal institutions

For this purpose, companies having legal personality, private legal persons, expressed trusts and similar legal institutions shall obtain and maintain, for a period of not less than five years, adequate, accurate and current information on their beneficial ownership.

The beneficial ownership information is to be obtained, depending on the obligated entity, by the director, founder, trustee or from a representative having the rights/powers, by requesting it from the beneficial owner. Otherwise, those information can also be obtained by using information already available to them (e.g., on the basis of what is recorded in the shareholder register, or from information about the ownership structure and the control of the entity, from communications directly received from the shareholders and from any other data available to them). In case of doubt, the aforementioned information are acquired following an express request addressed to those shareholders in respect of which it is necessary to investigate the extent of their interest in the entity. The unjustified inaction or refusal of the shareholder to provide the directors with the information they deem necessary for the identification of the beneficial owner or the indication of clearly fraudulent information has as a consequence that the relevant voting right cannot be exercised and entails the possibility of challenge any resolution passed with the shareholders’ decisive vote.

Which entities are excluded from the reporting obligation?

The obligation to communicate beneficial ownership information does not apply to:

partnerships
non-recognised associations
consortia (unless they take the form of an enterprise having legal personality)
social enterprises (unless they take the form of a company or legal entity required to be registered in the Commercial Register)

What must be communicated?

The above-mentioned persons must communicate:

The identification data of the natural persons identified as beneficial owners (including name, surname, place of birth, date of birth, citizenship, residence, domicile, fiscal code)
Any indication of exceptional circumstances for the purposes of excluding access to the beneficial ownership information (because access would expose the beneficial owner to a disproportionate risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation, or the beneficial owner is an incapacitated person or a minor), as well as a certified e-mail-address (posta electronica certificata) referred to the beneficial owner in order to receive communications on access requests;
A declaration of responsibility and awareness of the sanctions provided for by criminal legislation and special laws on the subject of falsity of documents and declarations made.

In addition to these information:

Companies having legal personality shall communicate:
a) the amount of the participation in the entity’s capital by the natural person who indicated as the Beneficial Owner,
b) or, where the Beneficial Owner cannot be identified because of the extent of the participation, the manner in which control is exercised,
c) or, as a last resort, the powers of legal representation, administration or management of the entity, exercised by the natural person who indicated as the Beneficial Owner;
Private legal persons must communicate:
a) the fiscal code;
b) the name of the entity;
c) the registered office and, where different from the registered office, the administrative office of the entity;
d) the certified e-mail address;
Trusts and similar legal entities shall communicate:
a) the fiscal code;
b) the name of the trust or similar legal institutions;
c) the date, place and details of the deed of establishment of the trust or legal institution.

Access to the data in the UBO-Register is permitted to the Authorities pursuant to art. 21, paragraph 2 a) - b) and paragraph 4 a) - c) of Legislative Decree 231/07 (e.g. Ministry for Economy and Finance, FIU, Guardia di Finanza, Anti-Mafia Directorate) as well as to the subjects obliged to carry out KYC-due diligence referred to in art. 3 Legislative Decree 231/07 (e.g. banks, insurance companies, notaries, lawyers, tax consultants). Following the sentence of the EU Court of Justice of 22 November 2022 no. C-37/20 and C-601/20 the possibility for the public to consult the UBO-Register is still a matter to be regulated with new provisions. The Ministerial Decrees of 16 March 2023, 12 April 2023 and 20 April 2023, in agreement with the Ministry for Economy and Finance, have - in consideration of the aforementioned sentence - limited the access to the data of the beneficial ownership of companies and private legal entities only to the owners of a relevant and differentiated legal interest, similarly to what is provided for access to data and information on the beneficial ownership of trusts and similar legal institutions.

How is the communication made?

The communication is made by means of a self-declaration in telematic form only and is exempted from stamp duty by the obliged entity. The legal representative making the communication must have a digital signature.

When to communicate?

With regard to the deadlines for making communications – which are peremptory – the following deadlines apply:

data and information relating to beneficial owners must be communicated within 60 days starting from 9 October 2023, i.e. the deadline ends on 11 December 2023;
any changes in data and information relating to beneficial ownership must be communicated within 30 days from the act giving rise to the change in beneficial ownership;
in the case of newly established entities, the establishment of which takes place after the date of introduction of the UBO-Register, data and information on beneficial ownership must be reported within 30 days from the date of inscription in the appropriate Register;
annually, within 12 months from the first communication, the data and information on beneficial ownership must be confirmed, and companies with legal personality may do so at the same time as filing their financial statements.

What are the consequences if the communication is not made, is made late or is made falsely?

In the event of failure to communicate the data of the beneficial owner, any person required to do so will be punished with a pecuniary administrative sanction ranging from €103 to €1.032 (Article 21(1) of Legislative Decree 231/2007; Article 2630(1) of the Civil Code). The pecuniary administrative sanction is reduced to one third if the communication is made within thirty days from the expiry of the prescribed time limit.

In addition, unless the act constitutes a more serious offence, anyone who, being obliged to communicate information on the beneficial owner, intentionally provides false data or untrue information, shall be punished with imprisonment from 6 months to 3 years and with a fine ranging from €10,000 to €30,000.

[1] Doubts remain for branch offices of foreign companies based in the European Union. Communication is advised until clarifications are delivered from the competent Ministry.