Anti-Money Laundering

The latest updates of anti-money laundering legislation in the EU have added new entities required to follow its directives.
The Auction Houses are part of these, as they are active in the trade of works of art.

Auction houses are now considered to be the same as professionals and financial operators, and therefore, before concluding any commercial transaction, they must check customers.

Customers will have to fill out a self-certification.

BENEFICIAL OWNER

Art. No. 1 (2) (pp) of Legislative Decree No. 231/2007 as amended and supplemented

pp) beneficial owner: the natural person(s), other than customer, in which interest, ultimately, the ongoing business relation is established, the professional performance is made or the operation is performed;

Art. No. 20 of Legislative Decree No. 231/2007 as amended and supplemented
Criteria determining beneficial ownership of customers other than natural persons

1. The beneficial owner of customers other than natural persons shall coincide with the natural person(s) to which is attributable, ultimately, the direct or indirect ownership of the company, or its control.

2. In the event the customer is a capital company:
a) it shall constitute an indication of direct ownership the ownership of more than 25% of the capital of the customer, owned by a natural person;
b) it shall constitute an indication of direct ownership the ownership of more than 25% of the capital of the customer, owned through subsidiary companies, trust companies or any other intermediary.

3. In cases where the analysis of the ownership structure does not allow to identify unambiguously the natural person(s) to which is attributable the direct or indirect ownership of the entity, the beneficial owner coincides with the natural person(s) to which is attributable, ultimately, its control by virtue:
a) of the control of the majority of votes in the ordinary shareholder's meeting;
b) of the control of the votes, sufficient to exercise dominant influence in the ordinary shareholder's meeting;
c) of the existence of special contractual obligations enabling to exercise dominant influence.

4. In the event the customer is a legal person governed by private law, as per Italian Decree of the President of the Republic dated 10 February 2000, No. 361, are cumulatively identified as beneficial owners:
a) the creators, where alive;
b) the beneficiaries, when identified or easily identifiable;
c) the owners of legal representation powers, management and administration.

5. If the application of the criteria set out in the previous paragraphs does not allow to identify unambiguously one or more beneficial owners, the beneficial owner shall coincide with the natural person(s) which, following the respective organisational or statutory framework, is/are owner(s) of powers of legal representation, administration or management of the company or of the customer anyway other than natural person.

6. Liable parties shall keep record of all checks carried out in order to identify the beneficial owner, as well as, with specific reference to the beneficial owner as identified pursuant to paragraph 5, of the reasons preventing to identify the effective beneficial owner pursuant to paragraphs 1, 2, 3 and 4 of this article.

POLITICALLY EXPOSED PERSONS

Art. No. 1 (2) (dd) of Legislative Decree No. 231/2007 as amended and supplemented

dd) politically exposed persons: natural persons who are entrusted or which have ceased to be entrusted for less than one year with prominent public functions, or their family members, and those known to be close associates of the aforementioned persons, as listed below:

1) natural persons who are or have been entrusted with prominent public functions shall include individuals holding or having been holding the position of:
1.1 President of the Republic, Prime Minister, Minister, Vice-Minister and Under-Secretary, President of Region, Regional Councillor, Mayor of the provincial capital or of the metropolitan city, Mayor of a town with a population of not less than 15.000 inhabitants, or similar positions in foreign countries;
1.2 deputy, senator, member of the European parliament, member of a regional parliament, or similar positions in foreign countries;
1.3 member of central boards of political parties;
1.4 judge at the Constitutional Court, magistrate of the Court of Cassation or of the Court of Auditors, State Councillor and other members of Administrative Courts, or similar positions in foreign countries;
1.5 member of boards of central banks and independent authorities;
1.6 ambassador, chargés d’affaires, or similar positions in foreign countries, high-ranking officer in the armed forces, or similar positions in foreign countries;
1.7 member of administrative, management or supervisory bodies of subsidiary companies, directly or indirectly controlled by the Italian State or by a foreign State, or of companies with prevailing or total participation of Regions, Province capital cities and metropolitan cities and towns with a population of not less than 15.000 inhabitants;
1.8 General Manager of Local Health Department and Hospitals and of other entities of the national health service;
1.9 director, vice-director and board member or subject performing the same functions in international organisations;

2) family members of politically exposed persons shall include: the parents, the spouse or the person in a civil partnership or in cohabitation de facto or in assimilated institutions with the politically exposed person, the children and their spouses or persons in a civil partnership or in cohabitation de facto or in assimilated institutions with them;

3) subjects with whom politically exposed persons are known to be close associate shall include:
3.1 natural persons who, for the purposes of this decree, hold, jointly with the politically exposed person, the beneficial ownership of legal entities, trusts and similar legal arrangements, or have close business relations with the politically exposed person;
3.2 natural persons who has sole formally the beneficial ownership of an entity which is known to have been set up de facto in the interest and for the benefit of a politically exposed person;

Art. No. 24 (6) of Legislative Decree No. 231/2007 as amended and supplemented

6. Liable parties shall, in case of a significant risk of money laundering or financing of terrorism, apply measures of appropriate reinforced control of the customers who, originally identified as politically exposed persons, have ceased to hold the relative positions for more than one year. This shall also apply even where the beneficiary of the insurance benefit or the beneficial owner are politically exposed persons.