The UBO register is now operational in Italy
Published on 16th Oct 2023
First notifications can now be made, with deadline for first communication of 11 December
The Ministry of Enterprises and Made in Italy (MIMIT) Decree of 29 September making the register of beneficial owners operational was published in the Official Gazette no. 236 of 9 October 2023.
The deadline for the first communication to the relevant companies registry is 11 December 2023.
The 'Ultimate Beneficial Owner'
Art. 20 of Legislative Decree 231/2007 (the so-called Anti-Money Laundering Decree) states that "the beneficial owner of entities other than natural persons is the natural person or persons who ultimately own or control the entity".
Therefore, the Ultimate Beneficial Owner (UBO) is the natural person who owns or controls a legal entity or is the beneficiary according to the criteria identified in the law.
Who has to give notice?
Enterprises having a legal personality (S.r.l., S.p.a., S.a.p.a. and cooperative societies), private legal persons (foundations and recognised associations) and trusts producing legal effects relevant for tax purposes and similar legal institutions are obliged to communicate their beneficial owner.
Partnerships (simple partnerships, general partnerships and limited partnerships) are excluded from the reporting obligation.
Who should prepare the communication?
As provided at art. 3 of Ministerial Decree 55/2022, company directors, founders, representatives and administrators of private legal entities and trustees of trusts and fiduciary mandates are obliged to comply. They are also obliged to notify and subsequent changes in the information and data provided within 30 days of the change occurring.
Entities established on or after 9 October 2023 are subject to this obligation within 30 days of their establishment.
How to make the communication
The communication is made via the DIRE app or other market solutions, using the most recent ministerial model. A device allowing the addition of a digital signature and a certified electronic mail (PEC) address are both necessary. The duly completed form must be digitally signed and sent either by the obliged party themselves or by an authorised intermediary.
For the time being, the possibility of delegating the signature to a professional is not envisaged, but professionals are able to help in the completion, sending and identification of the UBO.
Information to be included
Art. 4 of Ministerial Decree 55/2022 lists the self-certification data relating to the UBO that must be communicated:
• identification data - personal data, residence, tax code (if held) and citizenship
• the criterion applied to identify the beneficial owner.
Moreover, on an annual basis, the information provided will have to be confirmed within twelve months from the date of the first communication or the last confirmation. This confirmation may be submitted, for companies with share capital, at the same time as the filing of the financial statements, attached to the relevant file.
Subsequent checks and sanctions
The territorially competent Chambers of Commerce will carry out checks and, if necessary, impose the sanctions for non-compliance provided for in art. 2630 of the Italian Civil Code (ranging from €103 to €1,302). Criminal sanctions apply in the event of false declarations.
Individuals obliged to comply with anti-money laundering requirements – such as lawyers and accountants – are required to promptly report to the competent Chamber of Commerce any discrepancies and/or inconsistencies between the beneficial ownership information obtained as a result of consulting the Companies Register and that acquired during the client due diligence process.
How to identify the UBO
There are three main criteria for identifying the UBO of a corporation, as set out in art. 20 of the Italian AML Decree:
• The first criterion is that of ownership structure, whereby the UBO is the person who directly or indirectly owns more than 25% of the share capital of the company concerned.
• Where it is not possible to identify the UBO through an analysis of the ownership structure, it is possible to identify them as being the natural person or persons to whom control of the company can be attributed through votes in shareholders' meetings or particular contractual ties capable of influencing corporate decisions.
• Finally, it is possible to identify as the UBO those who legally exercise the power of legal representation, administration and management.
We would be happy to provide support in identifying the UBO and completing the communication containing the notification of the UBO.
Please contact your usual Osborne Clarke contact or one of our experts listed below.