ITALY Law and Practice Contributed by: Francesco Di Carlo and Filippo Raynaud, FIVERS Studio Legale e Tributario
• communicate the relevant information to the com - petent Companies Register. This obligation forms part of the broader EU AML framework, which requires transparency on the ownership and con - trol of legal persons. The identification of the beneficial owner must be car - ried out by the directors on the basis of statutory crite - ria, applied in hierarchical order, relating to ownership (direct or indirect), control and, residually, powers of representation or administration. In carrying out this assessment, directors must rely on all available cor - porate and accounting information and may request relevant data from shareholders and the beneficial owner. Companies must maintain adequate, accurate and up‑to‑date information on their beneficial ownership for at least five years and are required both to file such information with the Companies Register and to provide it to AML “obliged entities” (including banks, financial institutions, insurers, professionals and nota - ries) in the context of business relationships or qualify - ing transactions. It should be noted that, at the time of writing, the effectiveness of the filing obligation and access to the beneficial ownership register are suspended, pending a preliminary ruling of the Court of Justice of the Euro - pean Union following a referral by the Italian Council of State. Board Oversight of AML Matters Italian AML legislation does not establish a stan - dalone board regime for all companies comparable to that applicable to regulated intermediaries; how - ever, it clearly allocates responsibility for compliance with beneficial ownership obligations to the board of directors. In particular, directors are required to ensure the proper identification, verification, recording and updating of beneficial ownership information, exercising a stand - ard of diligence consistent with their general fiduciary duties under corporate law. This entails establish - ing adequate internal processes to collect and verify ownership information and ensuring that such data is promptly updated and, where applicable, notified to
the Companies Register and to counterparties that are subject to AML obligations. Companies and Directors’ Liability for AML Non- Compliance Directors may face multiple layers of liability in con - nection with failures to comply with AML-related obli - gations. First, Administrative liability may arise for the compa - ny in the event of a failure to file beneficial ownership information, which is subject to monetary penalties. Second, directors may incur civil liability towards the company where non-compliance results from a breach of their duties of care and proper manage - ment, for instance where they fail to adopt adequate procedures to identify or update beneficial ownership information. Third, in more serious cases, directors may be exposed to criminal liability, particularly where inac - curate or misleading information is intentionally pro - vided or where the conduct is connected to underly - ing money laundering offences, which are punishable under Italian criminal law. In addition, specific consequences attach to the con - duct of shareholders: unjustified refusal to provide information or the provision of manifestly inaccurate data results in the suspension of voting rights and may lead to the annulment of resolutions adopted with the decisive vote of the non-compliant shareholder. 6. Audit, Risk and Internal Controls 6.1 External Auditors An external audit is an official auditor or audit firm, included in special Registry held by the Ministry of Economy and Finance, appointed by a company to conduct the financial audit of the financial statement of a company. This external auditor is separate from the board of statutory auditors, which is a control body required in each SPA with the so called “tradi - tional” governance model.
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