The Ministry of Enterprises and Made in Italy (MIMIT) issued a decree on September 29th, 2023, published in Official Gazette No. 236 on October 9th, 2023, implementing a system for the communication of Beneficial Owner data and information related to legal persons, private entities, trusts, and similar entities, in accordance with Article 3, paragraph 6 of Ministerial Decree No. 55/2022 (“MEF Decree”). (Directive (EU) 2018/843 of the European Parliament and of the Council of May 30, 2018, amending Directive (EU) 2015/849, Ministerial Decree No. 55 of 11 March 2022).
The pivotal figure in this new legislation is the Beneficial Owner, defined as the natural person conducting a transaction or activity or, in the case of a legal entity, the individual who, as a natural person, owns, controls, or is the beneficiary, as described in Legislative Decree No. 231 of November 21, 2007.
Who must report the Beneficial Owner data
- Companies with legal personality: This includes limited liability companies, joint-stock companies, limited partnerships, and cooperative societies.
- Not-for-profit organizations: Foundations, associations, and other private entities acquiring legal personality through registration in the register of legal entities, established at the Prefectures and at the Regions and Autonomous Provinces.
- Trusts and similar institutions: Entities and institutions whose structure and functions have legal effects equivalent to trusts.
- Companies with legal personality
For corporations, two types of beneficial ownership exist:
- Direct ownership: Ownership of more than 25 percent of the share capital held by a natural person.
- Indirect ownership: Ownership of more than 25 percent of the share capital held through subsidiaries, trusts, or intermediaries.
In cases where it’s not possible to unambiguously identify the natural person(s) holding ownership, the beneficial owner is the natural person(s) controlling the company through:
- Control of a majority of votes at an ordinary shareholders’ meeting.
- Control of enough votes to exert a dominant influence in the ordinary shareholders’ meeting.
- The existence of contractual constraints permitting the exercise of a dominant influence.
Otherwise, the beneficial owner is identified with the natural person(s) holding powers of legal representation, administration, or management of the company or the customer, different from the natural person.
Note that a company may have more than one beneficial owner.
- Foundations and other not-for-profit organizations
With regard to foundations and other not-for-profit organizations, beneficial owners are:
- The Founder, if alive.
- The Beneficiary.
- The holder of legal representation, management, and administration powers.
Beneficial ownership is identified on a ‘cumulative’ basis; founders, beneficiaries, and holders of legal representation, management, and administration powers are all identified as beneficial owners of the private legal entity.
It is possible that there is more than one beneficial owner.
- Trust and similar institutions
The third group includes:
- Trusts with fiscal codes established or resident in Italy and trusts non-resident but with income generated in Italy.
- Institutions whose structure and functions have legal effects equivalent to trusts.
The natural persons concerned are:
- The Founder.
- The Trustee (within the limits of the regulations).
- The Guardian.
- The Beneficiary.
- The Person exercising control over the trust or the assets transferred to the trust, through direct or indirect ownership or other means.
Beneficial ownership is identified on a cumulative basis. If, in addition to the settlor and trustee, there are other persons among those indicated, all must be disclosed as beneficial owners of the trust.
Entities excluded from reporting obligation
The obligation to communicate beneficial ownership information does not apply to:
- Unlimited partnerships.
- Non-recognized associations.
- Consortia (unless they are enterprises having legal personality).
- Social enterprises (unless they are companies or legal entities required to be registered in the Commercial Register).
How is the communication made
The communication of the beneficial owner to the Companies’ Register is made by telematic transmission using the “Comunicazione Unica” form and the specific TE digital form, approved by the Ministry of Enterprise and Industry by Decree of April 12, 2023 (see Article 3(5) of Decree No. 55/2022).
It is necessary to use:
- DIRE or other alternative devices: DIRE is the Chambers of Commerce web service for filling and submitting applications with a Digital Signature.
- Telemaco: Telemaco is the electronic help desk developed by InfoCamere, containing all the official documents of the Company Register and other chamber registers.
- Digital Signature: The Digital Signature is a advance electronic signature under the eIDAS regulation and the Digital Administration Code allowing documents to be signed with the same legal value as a traditional handwritten signature.
- PEC (Certified Electronic Mail): PEC allows the sending and receiving of legally valid emails, equated with a registered letter with acknowledgment of receipt.
Therefore, the communication must be digitally signed; power of attorneys are not allowed, and the file is subject to a secretarial fee but exempt from stamp duty.
The deadline for submitting the communication to the Companies Register is following::
(i) for entities already incorporated as of October 9, 2023, the communication shall be submitted by December 11, 2023;
(ii) for companies with legal personality, foundations and other not-for-profit organizations established after 9 October 2023, the communication must be submitted within 30 days of their registration with the relevant register. Trusts and similar legal entities established after the same date shall provide the disclosure within thirty days of their establishment.
Sanctions
In case of failure to communicate the data of the beneficial owner, any person required to do so will be subject to 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). If the report is submitted within thirty days after the specified deadline, the monetary administrative penalty will be reduced to one-third of the original amount.
Furthermore, unless the action constitutes a graver offense, individuals required to disclose details about the ultimate beneficial owner and deliberately provide incorrect or false information will face penalties. This can result in imprisonment for a period of 6 months to 3 years, along with fines ranging from €10,000 to €30,000.
