Contracts – anti-mafia checks on trustees and trust companies
The letter addressed, by Assofiduciaria, to the Prefect of the Republic, Bruno Frattasi, follows, regarding the reasons for which, in the case of headings/quotas of companies participating in tenders, the anti-mafia checks must not fall on the trust companies.
From acquired information, it would appear that the Ministry of the Interior has given indications to the Prefectures regarding the verifications to be carried out with respect to subjects holding trust shares of the capital of companies against which the release of anti-mafia documentation is requested.
In particular, it would appear that:
- according to art. 85 of Legislative Decree 159/2011 the Prefect may extend the checks to physical or juridical persons, other than the company, against whom the anti-mafia documentation is requested, only when they hold the position of qualified shareholder, ie owner of shares or shares of the share capital at or above the 10% and 2% thresholds and that the trust companies are not included in this series since the owners of the shares and the shares are not juridically involved, carrying out the different activity of managing the investments according to the owner’s instructions – trustee.
- the trust company is not among the subjects subject to the anti-mafia checks, while the real natural person who owns almost all the share capital must be included, provided that the number of members is not more than four (art. 85 co. 2 lett. C of the Legislative Decree 159/2011.
- the prefecture can, however, make use of the faculty, established by the art. 91 co. 5 of Legislative Decree 159/2011, to extend the controls to the trust company on the assumption that this, by virtue of the “management” mandate conferred by the actual owner, can contribute to determining the progress of the economic operator subject to scrutiny. In this hypothesis, the anti-mafia screening can be extended to the trust company and to the natural persons incardinated in its corporate bodies that carry out the functions of administration, direction, and control relevant for anti-mafia purposes.
Since the fiduciary companies ordinarily act solely on specific assignments received from the trustee, the aforementioned hypothesis in which the trust company receives from the trustee a “management mandate” such as to be able to contribute to determining the economic performance of the trustee company is a remote hypothesis and only then will the precaution of a further anti-mafia check be valid, even if not shared.
By way of order, the Association believes that it should apply to trust companies as stated in paragraph 3 of article 83 of the Legislative Decree 6/9/2011, n. 159, which provides for the exemption from anti-mafia documentation in the case of relations with “other subjects, including private individuals, whose representative bodies and those in charge of administration and control are subjected, by law or regulation, to the verification of particular integrity requirements … “. In fact, these provisions apply to trust companies by virtue of the provisions of the ministerial decree of 16 January 1995 which provides – in art. 5, point 13 “Requirements of integrity” and point 18 “Anti-mafia certifications” – the possession of particular professional and integrity requirements. Therefore, the anti-mafia certificates, together with the residence certificate and the family status certificate for each of the directors, general managers, standing and alternate auditors (if present) and non-order personnel, are already acquired by the Ministry of Economic Development (the body that authorizes and supervises the trust companies) through the Prefectures.