The contribution by Vincenzo Stuppia was published in TRUSTS and Fiduciary Activities, May-June 2022.

The concept of holding of foreign assets or investments, which constitutes the prerequisite for the application of the entire monitoring regime, is substantiated in a factual, effective and current relationship between the holder and the foreign investment, which must exist both in the case of direct ownership and in the cases, identified by the second sentence of Article 4, paragraph 1, of indirect or mediated ownership.
The notion of beneficial ownership, which together with holding through indirect ownership constitutes the other requirement required by the second sentence of Article 4, paragraph 1, has as its characteristic attribute the power to direct towards oneself the advantage obtainable through the foreign investment or financial activity.
“Beneficiaries identified or easily identifiable”: mere mention within the trust deed is not sufficient, but the powers concerning the attribution must be identified in the specific case, which must be comparable to holding through indirect ownership, such as to also satisfy the requirements of beneficial ownership.
Necessity to interpret systematically the two sentences of paragraph 1 of Article 4 – referring the requirement of holding also to the cases highlighted by the second sentence – and difference in the subjective scope of monitoring obligations compared to anti-money laundering regulations, given the distance in the objectives and purposes that exists between the two regulatory frameworks.