Regulation No. 2020-02 - Amending Regulation No. 2010-01 for the Professional Exercise of the Trustee Office in the Republic of San Marino

THE DEPUTY DIRECTOR
OF THE CENTRAL BANK OF THE REPUBLIC OF SAN MARINO HAVING REGARD TO Article 2 of Delegated Decree No. 49 of 16 March 2010 and subsequent amendments; HAVING REGARD TO the Statute of the Central Bank of the Republic of San Marino approved by Law No. 96 of 29 June 2005, and in particular Article 30, paragraph 3, according to which acts of the Central Bank regarding supervision, deliberated by the Supervisory Coordination, are issued by the General Director, and Article 14, paragraph 5, which regulates the case of absence or impediment of the General Director; HAVING REGARD TO the outcomes of the public consultation procedure on the draft amending regulation of Regulation No. 2010-01, concluded on 14 May last; HAVING REGARD TO the deliberations of the Supervisory Coordination and the Board of Directors by which the text of Regulation No. 2020-02, named “Amending Regulation of Regulation No. 2010-01 for the professional exercise of the office of trustee in the Republic of San Marino”, was approved, ISSUES the attached Regulation No. 2020-02 which enters into force on 5 June 2020. San Marino, 3 June 2020 Signed: THE DEPUTY DIRECTOR f.f. Avv. Giuseppe Ucci

AMENDING REGULATION OF
REGULATION NO. 2010-01
FOR THE PROFESSIONAL EXERCISE
OF THE OFFICE OF TRUSTEE
IN THE REPUBLIC OF SAN MARINO year 2020 / number 02

Article 1 – Sources and definitions
1. In paragraph 1 of Article I.I.1, the reference to “paragraph 7” is deleted.
2. In paragraph 1 of Article I.I.2, point 10 is replaced as follows:
“Trustee Office Manager”: the subject appointed within the company to perform the office of trustee and endowed with the powers, even if not monocratic, related thereto as well as the respective responsibilities pursuant to and for the effects of Article 22, paragraph 2, letter b) of Decree No. 76/2006;”.
Article 2 – Requesting Financial Companies
1. In paragraph 1 of Article II.I.1, letter c) is replaced as follows:
“c) appoint, by resolution of the Board of Directors, as TRUSTEE OFFICE MANAGER a subject possessing the professional requirements referred to in the following Article II.II.1 paragraph 2, who is the legal representative, or another member of the Board of Directors, or the General Director or an employee of the company;”
2. In paragraph 1 of Article II.I.2, letter a) is replaced as follows:
“a) an updated detailed list of all shareholders holding participation shares in the capital;”.
3. In paragraph 1 of Article II.I.2, letter b) is replaced as follows:
“b) by the self-declaration referred to in Annex 1;”.
Article 3 – Requesting Companies
1. Paragraph 1 of Article II.II.1 is replaced as follows:
“1. REQUESTING COMPANIES, to obtain authorization for the PROFESSIONAL TRUSTEE OFFICE must:
a) have the legal form of S.p.A. or S.r.l.; b) have their legal seat and administrative seat within the territory of the Republic of San Marino; c) have as control body a Sole Statutory Auditor or a Board of Statutory Auditors, regardless of the size of the share capital; d) have insurance coverage guaranteeing third parties with a minimum limit of euro 1,000,000.00; e) not have suffered, in the last 12 months, RELEVANT ADMINISTRATIVE SANCTIONS; f) have shareholders, direct and indirect, BENEFICIAL OWNERS, directors and statutory auditors possessing the same integrity requirements provided by current supervisory provisions for corporate executives of banks; g) have the legal representative (President or Sole Director) or a member of the Board of Directors with operational delegation or the General Director or an employee of the company, who, as TRUSTEE OFFICE MANAGER, appears to possess the professional requirements referred to in the following paragraph 2; h) have in the corporate object of its statutes the provision of “PROFESSIONAL TRUSTEE OFFICE, if authorized by the CENTRAL BANK”; i) have as shareholders or quota holders only natural persons and/or legal entities as identified below:
1. companies, bodies and foundations under San Marinese law;

2. trusts registered in the Trust Register pursuant to Delegated Decree 16 March 2010 n.50;
3. foreign legal entities for which none of the following circumstances apply:
3a) legal form of “anonymous company” or substantially such, i.e., suitable, under the legal system of the country where it has its seat, to guarantee confidentiality of its ownership structures; 3b) legal seat in HIGH-RISK COUNTRIES; 3c) ownership structures not transparent and/or adequate, i.e., characterized by the presence of other legal entities falling into one or more of the provisions of previous points 3a and 3b or by foreign fiduciary companies not falling into the category described in the following point 5;
4. fiduciary companies registered in the Register of Authorized Subjects pursuant to Article 11 of LISF;
5. foreign fiduciary companies having their legal seat in Countries or Territories different from those included in the list referred to in previous point 3b) and with which international agreements for the exchange of information via administrative channels are in force.
j) appear suitable, from the documentation transmitted, from the information autonomously acquired by the CENTRAL BANK pursuant to Article 23-quater of Law 17 June 2008 n.92 and subsequent amendments and integrations, as well as from further information possibly acquired by the interested subjects upon specific request, to ensure the constant knowability and verifiability by the Central Bank of the effective ownership structures and, consequently, the effective exercise of supervisory functions on the existence and permanence on their part of the requirement referred to in previous letter f).”.
2. Paragraph 1 of Article II.II.2 is replaced as follows:
“1. For REQUESTING COMPANIES, the application referred to in the previous article must be accompanied:
a) by an updated detailed list of all shareholders; b) by the integrity certificates indicated in the following paragraph 2 for:

• all shareholders having the nature of natural persons;
• all directors of shareholders having the nature of legal entities;
• all directors and statutory auditors of the REQUESTING COMPANY;
  c) by a copy of the insurance policy referred to in Article 2 paragraph 3 letter b) of the TRUSTEE DECREE; d) by a certificate of validity of the company with updated content; e) by a copy of the updated deed of incorporation and statutes; f) by a curriculum vitae signed by the subject endowed with the professional requirements referred to in the second paragraph of the previous article, indicating his/her position on behalf of the REQUESTING COMPANY; g) by the self-declaration referred to in Annex 2; h) by a Technical Report that describes, with reference to the next two financial years:
• data and document archiving procedures, both in paper and electronic format;
• protection systems intended to be adopted to ensure their conservation and confidentiality.”.
  3. Paragraph 2 of Article II.II.2 is replaced as follows:
  “1. The possession of integrity requirements is proven through:

a) the production of the general criminal record certificate, the certificate of pending charges, the certificate of civil capacity or of never having been declared bankrupt, issued by the competent public offices of the place where the person has resided administratively for the longest period in the last five years, respecting the criteria of “substantial equivalence” referred to in Article 1, paragraph 2 of the COMPANIES LAW, as regards certificates that are equivalent but differently named because issued abroad; b) the production, with reference to all remaining jurisdictions, of a self-declaration made by the interested subject using the model attached as Annex 4 to this Regulation.
4. Paragraph 2 of Article II.II.2 is replaced as follows:
“3. Certificates issued abroad, if not in Italian or English, must be accompanied by a sworn translation into one of the aforementioned languages.”
Article 4 – Requesting Independent Professionals
1. In paragraph 1 of Article II.III.1, letter b) is replaced as follows:
“b) have insurance coverage guaranteeing third parties with a minimum limit of euro 1,000,000.00;”
2. In paragraph 1 of Article II.III.1, the first paragraph of letter c) is replaced as follows:
“- disciplinary actions pursuant to Article 45 of Law 20 February 1991 n.28;”
3. In paragraph 1 of Article II.III.2, letter d) is replaced as follows:
“d) by the self-declaration referred to in Annex 3.”,
4. Paragraph 2 of Article II.III.2 is replaced as follows:
“1. The possession of integrity requirements is proven through:
a) the production of the general criminal record certificate, the certificate of pending charges, the certificate of civil capacity or of never having been declared bankrupt, issued by the competent public offices of the place where the person has resided administratively for the longest period in the last five years, respecting the criteria of “substantial equivalence” referred to in Article 1, paragraph 2 of the COMPANIES LAW, as regards certificates that are equivalent but differently named because issued abroad; b) the production, with reference to all remaining jurisdictions, of a self-declaration made by the interested subject using the model attached as Annex 4 to this Regulation.
5. Paragraph 2 of Article II.II.2 is replaced as follows:
“3. Certificates issued abroad, if not in Italian or English, must be accompanied by a sworn translation into one of the aforementioned languages.”
Article 5 – Common Procedural Provisions
1. In Article II.IV.1, after paragraph 1, the following paragraph is added:

“2. All self-declarations referred to in the annexes of this regulation must be signed in one of the following modes:
a) before a notary public who attests to their authenticity; b) directly at the CENTRAL BANK before a public official, pursuant to Article 104 paragraph 1 of LISF, who proceeds with identification; c) digital signature pursuant to law.”
2. In paragraph 1 of Article II.IV.3, letter a) is replaced as follows:
“a) postal shipment with registered mail return receipt or via electronic registered mail T-notice;”.
3. Article II.IV.4 is replaced as follows:
“Article II.IV.4 – Term of the measure
1. The CENTRAL BANK, within 30 working days from the date of receipt of the application, communicates in writing to the address indicated in the application itself, the issuance or refusal of the authorization, indicating in the latter case the reasons.
2. In the case of REQUESTING COMPANIES, the authorization referred to in the previous paragraph, attesting to the positive outcome of the verification of the requirements above, is issued with effect upon obtaining, by the company itself, a license for the professional exercise of the trustee activity, to which the authorization must be understood as conditional.
4. Paragraph 1 of Article II.IV.5 is replaced as follows:
“1. In cases where the CENTRAL BANK requests from REQUESTING SUBJECTS further information and/or documents to integrate the application, the running of the term must be considered interrupted and therefore restarts in full at the moment the CENTRAL BANK receives the information or documents requested.”.
Article 6 – Waiver, Revocation and Suspension of Authorization
1. Paragraph 1 of Article III.I.1 is replaced as follows:
“1. PROFESSIONAL TRUSTEES may waive the authorization for the exercise of the PROFESSIONAL TRUSTEE OFFICE by giving written communication to the CENTRAL BANK using the methods referred to in Article II.IV.3.”.
2. Paragraph 3 of Article III.I.1 is replaced as follows:
“3. The waiver takes effect from the date of deletion of the PROFESSIONAL TRUSTEE from the REGISTER OF PROFESSIONAL TRUSTEES which must occur no later than 30 days from the moment when the communication referred to in the previous paragraphs has been perfected.”.
3. At point 1 of paragraph 2 of Article III.I.2, the word “serious” is added before “irregularities”.
4. The heading of Article III.I.3 is replaced as follows: “Suspension ex officio of the authorization”.

5. Paragraph 2 of Article III.I.3 is replaced as follows:
“2. During the period referred to in the previous paragraph, the authorization for the PROFESSIONAL TRUSTEE OFFICE must be understood as suspended, therefore, while maintaining the exercise of the trustee office for existing trusts, the PROFESSIONAL TRUSTEE cannot assume the office of trustee in further trusts.”.
6. Paragraph 2 of Article III.I.4 is replaced as follows:
“2. The PROFESSIONAL TRUSTEE within 30 days from the sending of the communication referred to in the previous paragraph may present his/her counter-arguments.”.
7. Paragraph 3 of Article III.I.4 is replaced as follows:
“3. After the term referred to in the previous paragraph has elapsed and no later than the following 30 days, the CENTRAL BANK alternatively orders:
a) the archiving of the suspension or revocation proceedings; b) the suspension or revocation of the authorization.”.
8. Article III.I.5 is replaced as follows:
“Article III.I.5 – Effects of the revocation measure and the waiver resolution
1. Following revocation or waiver of the authorization for the PROFESSIONAL TRUSTEE OFFICE, where due, the provisions of Articles 19, 39, 40 and 41 of the TRUST LAW apply.”.
Article 7 – Supervision on the Maintenance of Requirements
1. Article III.II.1 is replaced as follows:
“Article III.II.1 – Periodic Obligations
1. The PROFESSIONAL TRUSTEE, by 31 May of each year, must send to the CENTRAL BANK the self-declaration referred to in Annex 5 in which he/she declares, under his/her responsibility, the permanence of the subjective and objective conditions for the authorization for the PROFESSIONAL TRUSTEE OFFICE, providing a copy of the insurance receipt.”.
2. Paragraph 1 of Article III.II.2 is replaced as follows:
“1. With reference to the requirements referred to in previous Articles II.I.1, II.II.1 and II.III.1, the PROFESSIONAL TRUSTEE, save for the annual obligation referred to in the previous article, must anyway promptly communicate to the CENTRAL BANK any variation occurred with respect to the last information provided or documentation produced that concerns elements constituting the requirements for the authorization for the PROFESSIONAL TRUSTEE OFFICE.”.
Article 8 – Training Courses
1. Article IV.I.1 is replaced as follows:
“Article IV.I.1 – Accreditation of training courses

1. For the purposes of fulfilling the training burden referred to in the following article, both for enrollment in the REGISTER OF PROFESSIONAL TRUSTEES and for the mandatory annual training referred to in Article 2, paragraph 7, letter f) of the TRUSTEE DECREE, training courses on trust matters organized by the Professional Orders referred to in Article 2, paragraph 3, letter c) of the same TRUSTEE DECREE are accredited, in line with the following parameters:
a) treat predominantly with respect to other laws regulating the trust, the San Marinese regulating law, also in a comparative key with the first and other legal institutions perceived in practice as competing with the trust and analyze also the fiscal, publicity and anti-money laundering aspects of the trust in San Marino as well as provide skills in the field of asset administration; b) calibrate the content and the level of didactic deepening trying to respond to the different training needs of the participants (‘basic’ training aimed at aspiring trustees, ‘advanced’ training for the updating of PROFESSIONAL TRUSTEES); c) provide participants with models and operational schemes useful for the practical exercise of the trustee activity; d) allow participants to present questions to the speakers, compatible with the organizational needs of each of them, and to receive the course material, in paper or electronic format, no later than the start of lessons; e) allow participants to request, upon reaching the annual mandatory training hour requirement referred to in the following Article IV.I.2, the taking of a final test, oral and/or written, aimed at certifying, if passed, the acquisition of the skills necessary to obtain the authorization for the PROFESSIONAL TRUSTEE OFFICE or their updating; f) provide at least a second date for the final test, in the period between the thirtieth and the ninetieth day following the first test, to allow participants who have submitted the request referred to in previous letter e) but who have not passed the test or could not take it, to obtain the aforementioned certification anyway, save the possibility of taking a new test at the end of reaching the annual training hour requirement of the following year; g) provide the option, for course organizers, to use even telematic tools to ascertain the actual participation of enrolled participants during the lessons; h) provide that the achievement of the annual training hour requirement, as well as the passing of the final test referred to in previous letter e), are subject to communication to the Supervisory Department of the CENTRAL BANK as well as to certification to the direct interested party; i) provide that PROFESSIONAL TRUSTEES, and on their behalf their respective trustee office manager, who could not achieve the mandatory annual training hours for documented force majeure causes, can fulfill their training burden within six months following the expiration of the term, based on summaries, sources and other materials made available to enrolled participants.
2. The courses and their related final tests referred to in the previous paragraph can be respectively held and taken both in classroom and via telematic means (e-learning, webinars, etc.).”.
3. Article IV.I.2 is replaced as follows:
“Article IV.I.2 – Training Burden
1. In order to obtain the authorization for the PROFESSIONAL TRUSTEE OFFICE, directly the REQUESTING INDEPENDENT PROFESSIONALS or, in the case of REQUESTING FINANCIAL COMPANIES or REQUESTING COMPANIES, their TRUSTEE OFFICE MANAGER, must have passed, in the last 12 months prior to their application for enrollment in the REGISTER OF PROFESSIONAL TRUSTEES, the test referred to in the previous Article IV.I.1, paragraph 1, letter e).
2. REQUESTING FINANCIAL COMPANIES and REQUESTING COMPANIES, save for the obligation referred to in paragraph 1, also to preserve the authorization received and to appropriately identify surrogate figures for the TRUSTEE OFFICE MANAGER, have an interest in requesting participation in training courses, with enabling final test, also for other subjects, provided they are their employees or directors.
3. The annual mandatory training hour requirement is equal to:
a) 40 hours for REQUESTING SUBJECTS who intend to submit an application for enrollment in the REGISTER OF PROFESSIONAL TRUSTEES; b) 20 hours for PROFESSIONAL TRUSTEES who intend to maintain the same enrollment.
4. Article IV.I.3 is replaced as follows:
“Article IV.I.3 – Training Burden in Self-Suspension Regime
1. PROFESSIONAL TRUSTEES who do not exercise (yet or no longer) the office of trustee for a number of trusts greater than one, also taking into account the possible extension referred to in Article II.III.3, are exempt from the obligation to maintain the insurance coverage referred to in previous Articles II.II.1 letter d) and II.III.1 letter b) and can therefore suspend the related costs, provided they submit a reasoned application to the CENTRAL BANK for self-suspension of their enrollment in the REGISTER OF PROFESSIONAL TRUSTEES, avoiding the cancellation or ex officio suspension otherwise resulting.
2. In the cases referred to in the previous paragraph:
a) the enrollment is maintained with the indication “INACTIVE”; b) the inactive enrolled subject remains subject to the periodic and non-periodic obligations referred to in Part III, Title II, as well as to the annual updating training burden, and is subject to ex officio cancellation and suspension for causes other than the suspension of insurance coverage; c) the inactive enrolled subject may submit an application to the CENTRAL BANK for the reactivation of the enrollment at any time, provided he/she has fulfilled the annual updating training burden without interruption (save impediment for documented force majeure causes) and prior to production to the CENTRAL BANK of the documentation proving the reactivation of the insurance coverage referred to in paragraph 1.”.
Article 9 – Register of Authorized Trustees
1. Paragraph 2 of Article V.I.1 is replaced as follows:
“2. The CENTRAL BANK enrolls every subject authorized for the PROFESSIONAL TRUSTEE OFFICE at the moment of the issuance of the authorization or its perfection, in the cases referred to in paragraph 2 of Article II.IV.4.”.
2. Paragraph 3 of Article V.I.2 is replaced as follows:

“3. The request referred to in the previous paragraph must be made in writing with registered mail return receipt or with electronic registered mail T-notice or with hand delivery and must indicate the address to which to send the response.”.
3. In Article V.I.3, after paragraph 1, the following two paragraphs are added:
“2. In a specific and separate section of the REGISTER OF PROFESSIONAL TRUSTEES, named “Training of Resident Agents”, the independent professionals referred to in Article 1, paragraph 1, letter a) of the TRUST LAW who, although not PROFESSIONAL TRUSTEES, have nonetheless voluntarily performed the training on trust matters referred to in the previous Article IV.I.2 paragraph 3 may be enrolled.
3. In the cases referred to in the previous paragraph, the enrollment:
a) is carried out upon application by the interested party, presented with attached copy of the certificate referred to in the previous Article IV.I.1 paragraph 2 letter h) and with the authorizations/waivers necessary for the purposes of Law n.70/1995 and s.m. and Law n.171/2018 and s.m.; b) reports the following indications:

• name and surname of the professional;
• Professional Register of belonging and enrollment number;
• last year of training on trust matters;
• hours of training on trust matters achieved in the last year.”
  Article 10 – Attached Self-Declaration Models

1. As a result of the modifications referred to in the previous Article 3, the self-declaration model attached to Regulation No. 2010-01 and marked with no. 2, is replaced by the new model attached to this Regulation, equally named “self-declaration of requirements for the professional exercise of the trustee office by companies other than financial companies”