The Decree of the Ministry of Enterprise and Made in Italy of 29 September 2023, published in the Official Gazette No. 236 of 9 October 2023, introduced the Register of beneficial owners as of 10 October 2023.
The register of beneficial owners aims to combat money laundering and terrorist financing by identifying all natural persons who directly or indirectly own or control a company or legal entity.
To this end, Legislative Decree 231/2007, transposing the European Anti-Money Laundering Directive, introduced the obligation for companies to disclose the data of their beneficial owners, an obligation that was later implemented with methods for collecting and accessing this information.
Numerous legal questions were raised initially before the Regional Administrative Court of Lazio and subsequently before the Council of State, which, most recently, by order of 15 October 2024, referred the matter to the Court of Justice of the European Union.
But let us take a step back and trace the history of this affair.
In December 2023, the sector associations appealed to the Regional Administrative Court of Lazio for the annulment of the decrees relating to the register of beneficial owners (in this case, we refer to Interministerial Decree No. 55 of 11 March 2022, the Directorial Decree of 29 September 2023 of the Ministry of Enterprise and Made in Italy, and the ‘Operating Manual for the telematic transmission of beneficial owner notifications to business registry offices’).
The T.A.R. Lazio, by Order No. 8083 of 6 December 2023, granted the applicants’ precautionary petition, suspending the effectiveness of the Decree of 29 September 2023 of the Ministry of Enterprise and Made in Italy and setting the public hearing for 27 March 2024.
On 9 April 2024, the Regional Administrative Court. Lazio dismissing the appeals, determined the resumption of the deadline for notifications to the register of beneficial owners, which was postponed to 11 April 2024.
The Council of State, involved in the matter following the appeal filed by Unione Fiduciaria S.p.A. and other fiduciary associations, on 17 May 2024, suspended the enforceability of the judgments of the Regional Administrative Court.
As a result, Unioncamere has suspended the operation of the beneficial ownership register for the consultation of beneficial ownership data and information, for the accreditation of obliged parties, and for access by authorised parties.
This meant that, until the hearing scheduled for 19 September 2024, banks, intermediaries and all professionals accredited on the portal could not enter the system because access was suspended, just as consultation of the register was suspended.
In addition, new crediting and access to consultation of the information entered in the Register of beneficial owners by authorised persons was suspended.
The Chambers of Commerce could not ascertain any violations and apply penalties for omitted/late reporting. The very operation of the register of beneficial owners, therefore, was suspended with no further obligation to report initial registrations and changes in data.
Following the expiry of the deadline for submitting beneficial owner communications, a debate arose on the possibility for the territorially competent Chambers of Commerce to ascertain and challenge late submissions under Article 2630 of the Civil Code.
On 23 May 2024, the Association of Certified Public Accountants and Bookkeeping Experts published a statement ruling out the possibility of the Chambers of Commerce investigating alleged violations and applying sanctions for omitted or late notification, as the conclusions of the Council of State could affect the entire register system.
For its part, the Ministry of Business and Made in Italy has not yet taken an official position, leaving it to the Chambers of Commerce to facilitate the correct fulfilment of the reporting obligations. Therefore, some Chambers of Commerce may decide to apply sanctions in case of omitted or late communication.
On 15 October 2024, the Council of State in Order No. 8248 suspended the operation of the register of beneficial owners, considering that the provisions of the regulation may violate Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, which protect the right to privacy and the protection of personal data. Moreover, the Council of State also made explicit reference to Articles 15 and 45 (right of establishment and right of movement) and Articles 20 and 41 (concerning equality and the right to good administration).
For this reason, six questions were referred to the Court of Justice of the European Union for a preliminary ruling concerning the interpretation and validity of Directive (EU) 2015/849, as amended by Directive (EU) 2018/843.
To date, the situation has remained unchanged. In the meantime, the Chambers of Commerce are adopting a wide variety of behaviour while waiting for unambiguous guidelines to correctly apply the national provisions.
The Chamber of Commerce of Bari, for example, allows you to start the file. The Chamber of Commerce of Milan has provided detailed instructions for the filing of beneficial owner files, following the Council of State Order No. 03532/2024 of 17 May 2024, (which suspended some of the registry’s provisions), published specific updates providing specialised assistance in regularising applications. On the other hand, some Chambers of Commerce are refusing to accept applications for the Register of beneficial owners (e.g. CCIAA of Genoa, CCIAA of Sannio, CCIAA of Rome).
In light of the above information, while awaiting due clarification on the matter and provisions from the competent authorities, our firm believes that the obligations relating to the disclosure of beneficial owners should not be considered suspended.
We consider it essential to continue to comply with current regulations and to make the necessary disclosures to ensure transparency and legal compliance. Therefore, we advise our customers to rely on our professionalism and to carry out the required communications through us in a timely manner.