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The Register of Beneficial Owners: between fighting money laundering and protecting personal data

28 Oct 2022 Europe

By virtue of the establishment of the Register of Beneficial Owners, the boards of legal entities, trusts and similar legal institutions will have to communicate to the Chamber of Commerce, within 60 days following the publication in the Official Gazette of the provision by which the Ministry of Economy and Finance will certify the operation of the Register itself, the personal data of the beneficial owners, i.e., according to the definition in Legislative Decree 231/2007, the natural person or persons who ultimately own or control the entity or who otherwise exercise control over it.

These are in particular identification data (name, surname and year of birth) and citizenship, as well as the extent of the shareholding in the entity's capital or the way in which control is exercised.

The purpose of the Register is obviously to prevent and combat the use of the economic system for the purposes of money laundering and terrorist financing. Even within this purpose, there are delicate aspects relating to the processing of the personal data of the natural persons identified as beneficial owners for which the issuance of the Decree was preceded by several discussions with the “Garante per la protezione dei dati personali” (i.e. the Italian Data Protection Authority), whose indications were included in the draft decree on which the Garante expressed its favorable opinion in its order of 14 January 2022.

In particular, the Decree provides that personal data relating to the beneficial ownership of legal persons are accessible not only to the authorities and persons obliged to verify customers and transactions, in support of the customer due diligence requirements under Legislative Decree 231/2007, but also to the general public, without limitation, upon payment of secretarial fees.

Access to the public is denied if, at the time of disclosure of the data, exceptional circumstances to access the information have been indicated, which may entail a disproportionate risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation or where the beneficial owner is an incapacitated person or a minor, subject to specific assessment.

The case of beneficial ownership data of trusts and related entities is different: in these situations further specific safeguards are provided with regard to the accessibility of the data to the public at large. Firstly, the data will only be accessible to the public if this is necessary to defend an interest relating to a legally protected situation, where there is a mismatch between beneficial ownership and legal ownership. Even in the event that the Chamber of Commerce considers, at the outcome of an initial assessment, to allow access, the Chamber of Commerce remains obliged to involve the counter interested parties in the assessment proceedings if exceptional circumstances for access have been indicated at the time of disclosure of the data of beneficial ownership.