ITALY Trends and Developments Contributed by: Giuseppe Fornari, Enrico Di Fiorino, Emanuele Angiuli and Lorena Morrone, Fornari e Associati Studio Legale
bility only if the act affects the financial interests of the EU and causes damage exceeding EUR100,000. By setting this threshold, the legislature appears to have wanted to criminally punish the entity only when the harm to the EU is significant, leaving the enforcement of less severe offences to the administrative system. The scope of this provision within the offences trig - gering corporate liability is further limited, considering that it only punishes a public official or a person in charge of a public service. This means that corporate liability may only arise if the entity is a public economic body, is partially owned by a public administration or is under public control. Alternatively, liability may also be established if a private individual within the entity has contributed to the commission of the crime by Legislative Decree No 90/2017 was issued to imple - ment EU Directive No 2015/849 (the so-called Fourth AML Directive). As required by Legislative Decree No 90/2017, Decree No 55/2022 of the Ministry of Econo - my and Finance (MEF) was then published in the Offi - cial Gazette on 25 May 2022. It contained “provisions relating to communication, access and consultation of data and information relating to beneficial ownership of businesses with legal personality, of private legal persons, of trusts producing legal effects relevant for tax purposes and legal institutions similar to trusts”. With the aim of tackling the use of the economic and financial system for the purpose of money-laundering and terrorism-financing, this Decree introduced new measures regarding the collection of data relating to company owners through the register of beneficial owners (the “Register”). the public official. Beneficial Owner Section 1, paragraph 2, letter pp) of Legislative Decree No 231/2007 defines the beneficial owner as “the natural person or natural persons, other than the customer, in whose interest or of which, ultimately, the continuous performance of an established pro - fessional relationship is rendered or the operation is executed”. The entities that must disclose the actual data controller in the company register are:
• companies with legal personality – ie, all LLCs (ordinary, simplified, and innovative start-ups, among others), joint stock companies and other corporations; • private legal entities (ie, foundations and recog - nised associations); and • trusts and similar legal institutions. The information must be confirmed every 12 months and any changes that may have occurred must be reported within 30 days. The persons responsible for making the specific disclosure are, respectively: • for corporations, the directors; • for private legal persons, the founders, representa - The data that must be communicated concerns enti - tlement to ownership of the company or the specific body. For example, in the case of companies, shares, methods of exercising control, powers of legal rep - resentation, administration and management data must be communicated. In this way, the Register will contain all the information on beneficial ownership of businesses, with the aim of countering illicit activities carried out related to money-laundering in the busi - ness space. The right of access to the Register, according to Sec - tions 5–7 of Ministerial Decree No 55/2022, will be granted by the authorities, to persons pursuant to Section 3 of Legislative Decree No 231/2007 and to the public in different ways. With reference to public access, in particular, on 22 November 2022 the Grand Chamber of the ECJ held, in joined cases C-37/20 and C-601/20, that the provision according to which the information relating to the beneficial owners included in the Register must be accessible to the public (Sec - tion 30 (5) of the EU’s Fifth Anti-Money Laundering Directive) violated the fundamental rights to respect for private life and the protection of citizens’ personal data, which are protected by Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. This principle was incorporated in the preamble to the Ministerial Decree of 12 April 2023 (by which the Min - istry of Enterprises and Made in Italy (MIMIT) approved tives, or directors; and • for trusts, the trustees.
230 CHAMBERS.COM
Powered by FlippingBook