The new Beneficial Ownership Register: communication obligations by the companies and other interested parties

On 25 May 2022, Decree of the Ministry of Finance no. 55 dated 11 March 2022 (“MEF Decree”) was published in the Official Gazette. In agreement with the Ministry of Economic Development, the MEF Decree lays down the provisions on the communication, access and consultation of data and information on the beneficial ownership of companies with legal status, private legal entities, trusts and trust-like legal institutions.

The Decree enters into force on 9 June 2022.

1.     The Beneficial Ownership Register and the obliged parties

The new MEF Decree establishes the long-awaited Beneficial Ownership Register, provided for since 2017 by Legislative Decree no. 90 of 25 May 2017, which implemented the Fourth Anti-Money Laundering Directive (EU Directive 2015/849) in Italy, amending Legislative Decree no. 231 of 21 November 2007.

Amongst other things, the MEF Decree introduces the obligation to report the data and information on beneficial ownership to the office of the Companies Register at the territorially competent Chamber of Commerce, by the following entities:

1. companies with legal status: limited liability companies, joint-stock companies, limited partnerships with share capital and cooperative companies;
2. private legal entities: recognized associations and foundations and other private institutions that acquire legal status through recognition by enrollment in the Register of Legal Entities, pursuant to Presidential Decree no. 361 of 10 February 2000;
3. trusts having legal effects for tax purposes[1] and trust-like legal institutions established or resident in Italy.

The MEF Decree has created two different sections in the Companies Register for communicating the data of beneficial owners taking into account the type of entities required to comply with the new obligation:

1. the “autonomous” section, which will collect data and information on the beneficial ownership of companies with legal status and private legal entities;
2. the “special” section, which will collect data and information on trusts and similar legal institutions.

2.     The data and information to be communicated and the persons responsible for the reporting

The data and information on beneficial ownership to be communicated are set out in Art. 4 of the MEF Decree.

The communication on beneficial ownership to the Companies Register must include, inter alia:

1. for all obliged parties, the identification data and nationality of the natural persons indicated as beneficial owners;
2. for companies with legal status, in addition to the provisions under a) above:
   • the size of the holding in the company’s capital by the individual identified as the beneficial owner;
   • where the beneficial owner is not identified by the size of the holding, the manner in which control is exercised or, as a last resort, the powers of legal representation, administration or management of the company exercised by the individual indicated as the beneficial owner;
3. for private legal entities, in addition to the provisions under a) above, the tax code, the name of the entity, the registered office and, where different, the administrative office, and the certified e-mail address;
4. for trusts and trust-like legal institutions, in addition to the provisions under a) above, the tax code, the name of the entity or institution, the date, place and details of the incorporation deed of the trust or the trust-like institution;
5. any exceptional circumstances that expose the beneficial owner to disproportionate risk[2] for the purposes of excluding access to the beneficial ownership information communicated to the Companies Register.

The parties responsible for reporting the data and beneficial ownership information are:

1. for companies with legal status, the directors or founder, if alive;
2. for private legal entities, the persons entrusted with representation and administration;
3. for trusts and trust-like institutions, the trustee.

3.     The method of reporting to the Companies Register and the timing for sending the information on beneficial owners

Beneficial ownership shall be reported electronically to the competent Companies Register using the Single Company Communication form (Comunicazione Unica di impresa) referred to in the Ministry of Economic Development’s (“MISE”) executive decree of 19 November 2009[3] .

The technical specifications of the electronic format of the Single Communication form to send beneficial ownership data will be described in an executive decree by the MISE (the “MISE Decree”), which will have to be adopted and enter into force within 60 days from the date of entry into force of the MEF Decree[4] .

Thus, the electronic reporting of data and information on beneficial owners by obliged parties has not yet been enabled and will have to wait for the publication of certain implementing measures.

In particular, existing companies and other obliged parties will have to make the first disclosures on data and information pertaining to beneficial ownership within 60 days from the publication of a  provision by the MISE certifying the functioning of the system for reporting data and information to the Companies Register (the “MISE Provision”).

Said MISE Provision should, in turn, be published within 60 days from the entry into force of the MEF Decree and, in any event, following the adoption and entry into force of the MISE Decree providing the technical specifications of the electronic format of the Single Communication form[5].

It follows, in essence, that with the exception of extensions or delays, the MISE Provision should be published by the second week of August 2022 and the communication of data and information on beneficial ownership must be completed by the obliged parties within the next 60 days and, therefore, by the first week of October 2022.

Companies and private legal entities which will be incorporated after the date of the MISE Provision, will have to send the data and information on beneficial ownership within 30 days of registration in their respective registers, while trusts and trust-like legal institutions will have to send the information within 30 days of their incorporation[6].

4.    Communicating changes and annual confirmation of data

The MEF Decree requires[7] obliged parties to notify any changes in the data and information on beneficial ownership already reported to the Companies Register within 30 days of the performance of the act that leads to the change in beneficial ownership.

Obliged parties will also have to confirm the data and information on beneficial ownership annually, within 12 months from the date of the previous disclosure.

Companies with legal status may provide this annual confirmation with the filing of their financial statements.

5.     Penalties

The terms provided for by the MEF Decree for communicating the data and information relating to beneficial ownership, the variations and the annual confirmations are mandatory[8].

The territorially competent Chamber of Commerce may provide for the investigation and notification of the breach of disclosure obligations and impose an administrative fine ranging between Euro 103 and Euro 1,032, pursuant to Article 2630 of the Italian Civil Code[9].

[1] Pursuant to Article 73 of the Income Tax Consolidation Act (TUIR, Presidential Decree no. 917 of 22 December 1986): see Article 21, paragraph 3, first sentence, of Legislative Decree no. 231 of 21 November 2007.

^[2] See Art. 2, paragraph 2, letter f), second sentence, and paragraph 4, letter d-bis), third sentence of Legislative Decree no. 231 of 21 November 2007: these are the risks of fraud, kidnapping, ransom, extortion, harassment, violence, intimidation or where the beneficial owner is an incapacitated person or a minor.

^[3] See Art. 3, paragraph 5 of the MEF Decree.

^[4] See Art. 3, paragraph 5 of the MEF Decree.

^[5] See Art. 3, paragraph 6 of the MEF Decree.

^[6] See Art. 3, paragraph 7 of the MEF Decree.

^[7] See Art. 3, paragraph 3 of the MEF Decree.

^[8] See Art. 3, paragraph 8 of the MEF Decree.

^[9] See Art. 4, paragraph 2 of the MEF Decree.