The Italian Government finally passed the legislative decree no. 125/2019 implementing the Vth EU AML Directive.
In the document, published on the Italian official gazette of 26th October, the major novelties regarding insurance operators are the following:
- the definition of insurance group is aligned with that contained under article 201 ter , para. 1 and 2, of the Code of Private Insurances;
- that of “politically exposed person” is extended to include also the individuals who, based on the legislative decree, hold, jointly with the political exposed person, the actual ownership of entities, trusts and similar structures or that hold, together with the politically exposed person tight business relations;
- the definition of trust Is extended to “similar structures” to be interpreted as “the entities which, due to their structure and functions, put in place activities similar to those of express trusts, also having regard to the destination of assets and goods to the control of a subject other than the owner, in the interest of one or more beneficiaries or for achieving a specific purpose”.
In addition to the above, the following obligations are included, among others:
- the subjects due to comply with the legislative decree (including life insurance companies and the insurance intermediaries registered under classes a), b) and d) of the RUI and sale life insurance products)must procure that their branches established in other EU Member States comply with the local legislation in matter of AML;
- the supervisory powers of the national regulatory authorities (including IVASS, among others) are extended to the subjects to whom essential or important functions have been outsourced to comply with the AML discipline, to the extent admissible under the discipline contained in the legislative decree;
- an enhanced cooperation obligation among national authorities is introduced, which can derogate also the obligation of confidentiality and secret;
- as far as the obligation of adequate verification of the clients, in case of clients already acquired, the subjects due to comply with the AML obligations, must comply with the same upon the fulfillment of the obligations provided for under EU Directive no. 2011/16/EU in matter of tax cooperation;
- fiduciaries of express trusts, as disciplined by law 16th October 1989, no. 364, as well as the persons exercising rights, powers and faculties in similar structures (as defined above), on condition that they are established or resident on the Italian territory, must obtain adequate, accurate and up to date information on the actual ownership of the trust(or of the similar structure), including, the identity of the settlor/s, of the fiduciary/ies, of the custodian/s, or of any other individual on behalf of the fiduciary, beneficiary or class of beneficiaries who control the trust or the similar structure;
- enhanced control measures are further introduced in case of transactions with extra EU countries or with entities or individuals established there.
Nothing is said to clarify the term “established without a branch on the Italian territory” whereas the personal data processed for AML purposes must be considered of public interest, as per EU Regulation no. 2016/679.