Article 20, Legislative Decree 231/2007 (so-called Anti-Money Laundering Decree), has implemented the Directive (EU) 2015/849 (so-called IV Anti-Money Laundering Directive), which sanctioned the obligation for each Member State to change its regulatory framework, so that companies and other legal entities supply and conserve information relating to “beneficial ownership” in central registers.
The identification of beneficial owner responds to the main purpose of avoid concealment of identity of the subject who carries out a specific operation through the use of opaque corporate structures. L’article 1, paragraph 2, letter pp), Legislative Decree 231/2007, defines the beneficial owner as “the natural person or natural persons, other than the client, in whose interest or persons, ultimately, the continuous relationship is established, the professional service is rendered or the operation is performed”.
With Ministerial Decree 11.3.2022, n. 55in force since 9.6.2022, the Register of beneficial ownerswhich contemplates a first sectiondedicated to the registration of beneficial ownership Of private companies and legal entitiesit’s a seconddefined special and intended for the registration of trusts And of similar legal institutions.
Furthermore, the Ministry of Business and Made in Italy (so-called MIMIT), with decree of 29.9.2023, published in the Official Journal no. 236 of 9.10.2023 (so-called MIMIT Decree), has certified operation of the data and information communication system on beneficial ownership.
L’article 3, paragraph 6, last sentence, Ministerial Decree 11.3.2022, n. 55requires that data and information communications be carried out within 60 days following the date of publication of the provision certifying the operation of the system. This means that on 11.12.2023 it was there last date to carry out the communication of data transmission related to beneficial owner in the year 2023.
However, it is equally known that different associations have presented appeal for annulment, pursuant to thearticle 29, Legislative Decree 104/2010, subject to suspension of effectivenessof the aforementioned MIMIT decree.
In the face of a first acceptance of the precautionary applicationwith ordinance no. 8083/2023 by the Administrative Court of Lazioand the consequent suspension of effectiveness of this decree, they followed up well six twin sentences, filed on 7.4.2024 (nos. 6837, 6839, 6840, 6841, 6844 And 6845), which have rejected all appeals as they were deemed unfounded.
Among the various grounds for appealthere was a prediction of one form of access (defined by the appellants) “generalized” to the register of beneficial ownerswhich instead would have been excluded from it Court of Justice of the European Uniondated 22.11.2022, in joined cases C-37/20 And C-601/20.
On this point, the TAR Lazio stated that, unlike what was stated by the appellant, the EU Court of Justice did not exclude public access to the register of beneficial owners, which, moreover, is expressly permitted fromarticle 31, paragraph 4, of the IV Anti-Money Laundering Directive.
Furthermore, it highlighted that thearticle 21, paragraph 4, letter d-BIS), Legislative Decree 231/2007, did not provide for a form of generalized accessbut has subordinate the possibility of accessing information on the beneficial owner on the anniversary of rigorous conditionsthat is, that:
- the applicant is the owner of a relevant and differentiated legal interest;
- access is necessary for cure or defend an interest corresponding to one legally protected situation;
- there is concrete and documented evidence of non-match Between beneficial ownership and legal ownership.
As a result of the above, it is back into force the aforementioned decree and, with it, the financial penalties at the head of those subjects not yet registered with the Chamber of Commerce as of 11.12.2023. Please remember that the failure to communicate of the information due is punished with administrative fine of a variable amount from 103 to 1,032 euros.
Therefore, to date, the obliged subjects (i.e., joint-stock companies, limited liability companies, limited partnerships by shares, cooperative companies and trusts producing legal effects relevant for tax purposes, whether or not resident in Italy) are required to communicate their own beneficial ownershipalso reporting any variationdue to any cause, by sending a new TE digital model to the competent company register office, in 30 days from the act or from the event that caused the change.
In any case, the same subjects are required to carry out the communication annuallytherefore within twelve months of the last one carried out, be it of variation or confirmation.
Lastly, it seems that a new decree for the postponement of deadlines communication of data on the beneficial owner, which would exclude sanctions until 10.7.2024. And, in any case, next 16.5.2024 will also be there the hearing in the Council of State relating to the proceedings mentioned above. The last one hasn’t been said yet.
