On May 25, 2022, the decree of the Ministry of Economics implementing the Ultimate Beneficial Owners Register (“UBO Register”) has been published in the Italian Official Journal (the “Decree”). The Decree is addressed to companies and other private legal entities, such as foundations and associations, trusts, and similar institutions (the “Entities”), and it is composed of three sections, respectively dealing with (i) modalities, terms, and data/information to be disclosed; (ii) access and consultation of disclosed data/information by authorities, obligated subjects, and third parties in general; and (iii) final provisions concerning data protection and other ancillary specifications.
The deadline for providing data/information to the Chambers of Commerce will be based on the date when all the implementing regulations mentioned in the Decree are effectively issued.
Below is an overview of the major provisions set forth in the Decree.
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Data and information to be disclosed
Pursuant to the Decree, legal representatives, as well as trustees of the Entities, are required to disclose electronically to the competent Chamber of Commerce, by means of a self-declaration the following:
- data/information on beneficial ownership;
- any changes to the above data/information within thirty (30) days from the relevant change;
- annual confirmation of the above data/information within twelve (12) months of the date of the (a) first communication, (b) last change, or (c) confirmation.
The data/information to be disclosed depend on the nature of the Entity.[1] Those common to each Entity are the following:
- identification data and citizenship of the natural person(s) indicated as beneficial owner(s);
- (if applicable) any circumstances regarding the basis for exclusion of access to information on beneficial ownership, as well as an email address for communication;
- declaration pursuant to which the relevant subjects state that they are responsible for and aware of the penalties provided by Italian criminal law, as well as special laws on the falsification of documents and statements.
Furthermore, the Decree provides two different sections of the Register of Enterprises where UBO information/data should be kept.[2]
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Access to data and information provisions
The Decree establishes specific provisions depending on whether the access is made by authorities, obligated subjects or third parties in general.
(i) Access by authorities
Access to the UBO Register is granted to specific authorities mentioned in Section 21 of Legislative Decree No. 231/2007 (“AML Decree”), including, by means of example, the Ministry of Economy and Finance, the Financial Intelligence Unit for Italy, the Anti-Mafia Investigative Directorate, and judicial authorities.
Access methods are governed by special agreements.
(ii) Access by obligated subjects
Specific subjects included in Section 3 of the AML Decree[3]—labeled therein as “obligated subjects”—may access the UBO Register to support their customers’ due diligence by means of a prior request for accreditation to be submitted to the competent Chamber of Commerce.
Accredited obligated subjects shall promptly report to the competent Chamber of Commerce any discrepancy between the beneficial ownership data/information in the Register of Enterprises and those acquired during their customers’ due diligence.
(iii) Access by the public
Data/information on beneficial ownership of companies and other private legal entities included in the autonomous section of the Register of Enterprises generally can be accessed by the public upon request and without limitation.[4]
Data/information on the beneficial ownership of trusts and similar entities included in the special section of the Register of Enterprises are available only to those subjects having specific interests, if they have substantial documented evidence of the non-correspondence between beneficial ownership and legal ownership.[5] Such subjects must submit a request with grounds for access to the competent Chamber of Commerce, which shall notify the applicant a reasoned denial within twenty (20) days from the request. The absence of a response shall be considered tacit denial of access.
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Timing
Despite the Decree entered into force on June 9, 2022, additional specific formalities must be carried out for the UBO Register to be implemented. Specifically:
- within sixty (60) days from June 9, 2022 (e., by August 8, 2022) the Ministry of Economic Development shall issue an implementing regulation stating that the UBO Register is operational;
- within additional sixty (60) days from publication of the implementing regulation as per point (i) above (e., by October 7, 2022), companies shall provide relevant data and information to the competent Chambers of Commerce.
All information disclosed shall be made available in compliance with specific data protection technical standards to be drafted by the provider (i.e., InfoCamere S.C.p.A.), on behalf of the data controller (i.e., the competent Chamber of Commerce) within thirty (30) days from the entry into force of the Decree. Then, they shall be submitted to the Data Protection Authority for review and approval.
In addition, the specific modalities to carry out the relevant filings and the administrative costs have not yet been determined; they shall be established by specific provisions to be issued within sixty (60) days of the Decree entering into force (i.e., by August 8, 2022).
As mentioned above, the deadline to disclose beneficial ownership data/information will depend on when the implementing regulations are actually issued. Nevertheless, by now, the last deadline to file all the above UBO information has been set for October 7, 2022.
[1] By means of example, companies are also required to disclose the amount of share capital held by the beneficial owner(s) and whether the beneficial owner(s) cannot be identified as per the point above, the way control is exercised, or, failing that, the powers of legal representation, management, or direction exercised by the natural person(s) indicated as the beneficial owner(s).
[2] In particular, UBO information/data for companies and other private legal entities shall be kept in the autonomous section of the Register of Enterprises, while those for trusts and similar entities shall be kept in the special section.
[3] Section 3 of the AML Decree includes, by means of example, Poste Italiane S.p.A, banks, electronic payment entities, and investment companies with fixed and variable share capital.
[4] Accessible data/information are first and last name, month and year of birth, country of residence, and citizenship of the beneficial owner(s), as well as the conditions underlying status as beneficial owner(s).
[5] As per Section 21, paragraph 4, letter d-bis), first and second sentences of the AML Decree.
