REPUBLIC OF SAN MARINO DELEGATED DECREE no. 77 of 19 May 2014 (Ratification of Delegated Decree no. 31 of 4 March 2014) We the Captains Regent of the Most Serene Republic of San Marino In view of promulgated Delegated Decree no. 24 of 4 March 2014 "Provisions relating to the administrative sanctions issued by the Central Bank of the Republic of San Marino and the Financial Intelligence, and to the responsibilities of the corporate bodies": In view of Article 41, paragraph 2, of Law no. 150 of 21 December 2012; In view of Resolution no. 8 of the State Congress adopted at the meeting of 18 February 2014; In view of the amendments made to the aforesaid decree at the time of its ratification by the Great and General Council at the meeting of 13 April 2014; In view of Resolution no. 22 of the Great and General Council of 13 May 2014; In view of Article 5, paragraph 3, of Constitutional Law no. 185/2005 and Articles 8 and 10, paragraph 2, of Qualified Law no. 186/2005; Are promulgating and publishing the final text of Delegated Decree no. 24 of 4 March 2014, as amended following the amendments approved by the Great and General Council at the time of its ratification: PROVISIONS RELATING TO THE ADMINISTRATIVE SANCTIONS ISSUED BY THE CENTRAL BANK OF THE REPUBLIC OF SAN MARINO AND THE FINANCIAL INTELLIGENCE AGENCY, AND TO THE RESPONSIBILITIES OF THE CORPORATE BODIES CHAPTER I General Rules Art. 1 (Background and purpose) 1. This delegated decree, in implementation of the second paragraph of Article 41 of Law no. 150 of 21 December 2012, reforms the monetary sanction system under the responsibility of the Central Bank of the Republic of San Marino (Central Bank) and the Financial Intelligence Agency (Agency), as defined by Law no. 96 of 29 June 2005 as subsequently amended, by Law no. 165 of 17 November 2005 as subsequently amended, by Law no. 92 of 17 June 2008 as subsequently amended and by Decree no. 76 of 30 May 2006 as subsequently amended, in order to:
a) make a more gradual application of sanctions in relation to the gravity of the breach; b) redefine the system of appeals; c) clarify the principles to which corporate bodies' responsibilities must comply. CHAPTER II Sanctions under the responsibility of the Central Bank SECTION I Amendments to Law no. 96 of 29 June 2005 Art. 2 (Amendments to Article 31 of Law no. 96/2005) 1. Article 31 of Law no. 96 of 29 June 2005 is replaced by the following: "Art. 31 (Sanctions) 1. Without prejudice to criminal sanctions, if required, anyone infringing the provisions of this law, and of those specifically regulating each function attributed to the Central Bank as well as implementing decrees and regulatory measures referred to in Article 30 above, shall be punished with monetary administrative sanctions. 2. By a specific decree, having heard the opinion of the CCR, on a proposal by the Central Bank, the following are identified: a) provisions whose breach is punishable; b) parties responsible for the breaches; c) maximum and minimum limits of each administrative sanction's amount, without reaching, at the minimum level, amounts under Euro 50,00 or exceeding, at the maximum level, amounts above Euro 50,000.00, in order for sanctions to be adequately effective, proportionate and acting as deterrents; d) the sanctioning procedure at its various stages, with a special framework concerning methods and terms of notification to the parties concerned. 3. The amount of individual sanctions is established by the Central Bank according to the principle of proportionality, i.e. determining the amount between the minimum and maximum amount, according to the seriousness of the breach, i.e. also taking into account the following elements: a) duration of breach; b) size of legal entity and group; c) the even potential impact of the breach on the technical, organisational and management position of supervised parties and groups to which they belong, as well as the eventual implementation against supervised parties, of prohibitory measures, specific provisions or extraordinary procedures; d) the reliability of the representation of the company's situation submitted to the Central Bank; e) cases in which, with a single action or omission, a breach of various provisions is committed, or a number of breaches of the same provision; f) cases of repeated breach; g) the even potential impact on clients, other qualified stakeholders or on the stability and reputation in general of the national financial system; h) any voluntary correction of tax returns i.e. the activities carried out by responsible parties or by the supervised party, to eliminate or mitigate the consequences of the offence; i) the degree of personal responsibility of parties subject to the sanctioning procedure, in relation to informative elements available, such as, by way of example, power structure, actual conduct, duration of appointment. 4. An individual sanction is applied in the case of a single action or omission, even when
a breach of various provisions, or a number of breaches of the same provision, is committed, without prejudice to the application of the proportionality criterion referred to in letter e) of paragraph 3 above. 5. No sanction is imposed on those specific actions or omissions that having already been analysed in previous audits by the Central Bank, have not been deemed as committing a breach, except in cases where new documents or new information related to the above actions or omissions were subsequently acquired. If not at fault, the following are also not subject to sanctioning: a) the director or statutory auditor who discovered the breach arising from a Board resolution, ensuring that this finding was included in the company's books or communications, and who reported it formally and timely to the Central Bank; b) the auditing company, the officer in charge of the audit or the actuary who, having discovered the breach, had this finding acknowledged in the manner prescribed by law, and reported it formally and timely to the Central Bank; c) additional parties who may be subject to sanctioning procedures, as identified by the delegated decree referred to in paragraph 2 above who, having discovered the breach while exercising their functions, reported it formally and timely to the Central Bank. 6. The sanctioning procedure: a) shall be initiated by the Central Bank within 9 months from the discovery of breaches by notification of debit transactions to parties concerned, providing references to the audit, supervisory activity, defaulted expiry or documentation acquired from which the objected alleged breaches have emerged; b) is concluded - taking account of any counter-claims submitted by the parties concerned within 30 days - a term that may be extended with arrangements with the Central Bank - and within 60 days from the start of the procedure, i.e. the above notification, by dismissing or imposing the administrative sanction by means of a justified provision containing the repayment order. If an extension is granted for the submission of counter-claims, the period of 60 days is increased by the number of days granted as an extension. 7. The administrative sanction is settled by the sanctioned party upon its issuing a payment to the Central Bank within 60 days of notification of the sanctioning measure. 8. The legal persons to which the parties responsible for the breaches belong shall also be jointly and severally responsible for payment of the imposed sanction with recourse obligation against those responsible. 9. The right to settle the sanction by immediate voluntary payment is granted to the party responsible for the breach and is exercised by payment of a sum equal to half of the imposed sanction. 10. Appeal in the Administrative Court against the sanctioning measure, in the manner and according to the terms referred to in Title II of Law no. 68 of 28 June 1989, is permitted, without prejudice for the Court to waive, in appeals against the sanctions imposed by the Central Bank, the provisions of Article 18, paragraph 4 of the same law. 11. Filing an appeal with a Court according to paragraph 10 above results in the suspension of the sanctioning measure, which therefore becomes effective and executive when the ruling rejecting the appeal becomes final. 12. The Central Bank, if neither the sanctioned party nor the legal person jointly and severally responsible has paid the final sanction, may avail itself, for the collection of sums, of the collection procedure on a tax-roll basis, pursuant to Law no. 70 of 25 May 2004. The collection of administrative monetary sanctions will therefore take place in the same manner as the collection of taxes, fees, levies, sanctions and any other revenue due to the Most Excellent Chamber, State Entities and State Autonomous Authorities. 13. The Central Bank shall transfer to the Most Excellent Chamber the amounts collected as sanctions, net of any legal fees incurred for the defence against appeals referred to in paragraph 10 above; these sums will be charged to a specific chapter, "Measures on the financial banking and insurances system" of the national budget.
14. The monetary administrative breaches as defined by this law and by the delegated decree referred to in paragraph 2 are included in the list that the Administrative Court of Appeal presents annually, pursuant to Article 32 of Law no. 68 of 28 June 1989". Art. 3 (Amendments to Article 32 of Law no. 96/2005) 1. Article 32 of Law no. 96 of 29 June 2005 is replaced by the following: "Art. 32 (Disclosure of sanctions) 1. The Central Bank may, in the cases and manners that it considers as most appropriate, disclose the monetary sanctioning measure and the recipients of the same measure only when this measure is final." SECTION II Amendments to Law no. 165 of 17 November 2005 Art. 4 (Amendments to Article 141 of Law no. 165/2005) 1. Article 141 of Law no. 165 of 17 November 2005 is replaced by the following: "Art. 141 (Sanctions) 1. Administrative monetary sanctions imposed by the Central Bank in exercising the functions under this Law shall be governed by Article 31 of Law no. 96 of 29 June 2005 and related implementing delegated decree ". Art. 5 (Abrogation of Article 146 of Law no. 165/2005) 1. Article 146 of Law no. 165 of 17 November 2005 is repealed. SECTION III Amendments to Decree no. 76 of 30 May 2006 Art. 6 (Amendment to the title of Decree no. 76/2006) 1. Decree no. 76 of 30 May 2006 is renamed as follows: Cases liable for sanctions concerning the provisions of Law no. 96 of 29 June 2005 and measures issued by the Central Bank of the Republic of San Marino." Art. 7 (Amendment to Article 19 of Decree no. 76/2006) 1. Article 19 of Decree no. 76 of 30 May 2006 is replaced as follows:
Art. 19 (Legislation concerning the prevention of and fight against money-laundering and terrorism financing) 1. Failure to comply with instructions issued by the Financial Intelligence Agency according to Law no. 92 of 17 June 2008 as subsequently amended, is punished by an administrative sanction imposed by the Financial Intelligence Agency as provided for by Law 92/2008." Art. 8 (Amendment to Article 22 of Decree no. 76/2006) 1. Article 22 of Decree no. 76 of 30 May 2006 is replaced as follows: "Art. 22 (Persons responsible for the breaches) 1. The provisions of this delegated decree, without prejudice to the breaches for which any party may be punished, are applied to all parties subject to the sanctioning power of the Central Bank in exercising public functions assigned to it by laws and decrees, and in particular: a) to supervised parties, including Ente Poste, for financial services provided; b) to holding companies classified as parent companies pursuant to Article 54 of LISF (Banking, Financial and Insurance Services); c) to offering and issuing parties in Part III of LISF; d) to holders of significant shareholdings referred to in Part I, Title IV, of LISF; e) to parties with obligations towards the Trust Register Office pursuant to Law no. 42 of 1 March 2010 as subsequently amended; f) to cash handlers pursuant to Law no. 101 of 29 July 2013; g) to companies authorised to purchase raw gold under Law no. 41 of 25 April 1996. 2. As regards legal persons, in cases of a grossly negligent act or omission, the following are subject to a sanctioning procedure: a) those performing administrative, managing or controlling functions; b) employees who are entrusted, in the context of the corporate structure, with responsibility for specific business operational or internal control functions - provided that facts are related to responsibilities by act or omission of parties against whom the breach is alleged; c) those operating on the basis of relations, including relations other than subordinate employment, that determine their inclusion into the organisational structure, provided that facts are related to responsibilities by act or omission of parties against whom the breach is alleged; d) parties in charge of auditing, for a breach of any of their responsibilities, for failure to communicate to the Central Bank any acts or facts discovered in the course of their appointment, which can constitute a serious breach of current regulation or may affect the continuity of the company, or lead to an adverse opinion, a qualified opinion or a statement on the impossibility of expressing an audit opinion on the financial statements, as well as for failure to forward to the Central Bank any other data or document required. 3. A monetary sanction, when it is directed to natural persons, if it is of a personal nature. However, the legal persons to which those responsible for the breaches belong, shall be jointly and severally responsible for payment of the sanction as provided for in Article 31, paragraph 8 of Law no. 96 of 29 June 2005 as subsequently amended". Art. 9 (Amendment to Article 23 of Decree no. 76/2006) 1. Article 23 of Decree no. 76 of 30 May 2006 is replaced as follows:
"Art 23 (Principles, criteria and procedures) 1. Sanctioning activities are inspired by an approach: a) of a deterrent nature, such as to discourage a breach of the rules and repetition of the anomalous behaviour; b) of a proportional nature, in order to adjust the sanctioning measure according to the gravity of the breaches; c) of an objective nature, to ensure homogeneous opinions in the practical evaluation of different cases; d) of a transparent nature, towards the sanctioned parties whose possible counter-claims may integrate overall knowledge, completing the elements acquired in the course of the documentary and monitoring review. 2. The Central Bank, in accordance with the procedure described in the following paragraphs, shall ascertain the breaches, lead the investigation, impose sanctions or notify the parties concerned that it interrupted the sanctioning procedure initiated against them. 3. The Central Bank's sanctioning procedure is divided into the following stages: a) notification of alleged breaches; b) submission of counter-claims and possible personal hearing; c) evaluation of all investigative elements; d) a proposal on the part of the organisational unit responsible for the statutory body in charge of imposing the sanction or dismissing the proceeding; e) adoption of the sanctioning measure or dismissal of the proceeding by the competent statutory body; f) notification of sanctioning measure; g) any publication of the sanctioning measure. 4. For the purposes of expiry of the term referred to in Article 31, paragraph 6, letter a) of the Central Bank Statutes, a discovery of breaches shall coincide with the date when: a) the deadline for submitting, filing with or delivering to the Central Bank any information, documents, communications or notifications, that may also be periodic or statistical in nature, has expired unsuccessfully; b) expiry of the deadlines for the submission to the Central Bank of considerations on the findings of auditing reports delivered to the parties concerned; c) the documents from which the breach transpired are received by the Central Bank, in certified form, even non periodically. 5. The notification of breaches is communicated as provided for in Article 17 of Law no. 100 of 29 July 2013. 6. The notification of sanction, in addition to the formal elements suitable to qualify it as an preliminary statement of the sanctioning administrative procedure, shall contain: a) reference to the follow-up inspection, supervisory activity, defaulted expiry or acquired documentation from which the breach transpired; b) the date on which detection of the breach was made pursuant to paragraph 4 above; c) the description of the breach by act or omission with indication of the period in which it was allegedly committed in relation to the role and permanence in the appointment; d) indication of the breached provisions and related sanctioning rules; d) the invitation to parties whose breaches are contested and to the legal person jointly and severally responsible, to submit to the above-referred organisational unit in charge of the procedure, any counter-claims within 30 calendar days following notification; f) indication of the right of parties who are recipients of the notifications to request a personal hearing within the same term, as originally set or extended according to the following paragraph 7, provided for the submission of counter-claims; g) the term for concluding the administrative procedure, pursuant to the provisions of by Article 31, paragraph 6, letter b) of the Central Bank Statutes.
7. Submission of counter-claims, in keeping with the principle of defence referred to in Article 15 of the Declaration of the Citizens Rights and Fundamental Principles of the San Marino Constitutional Order, is a right for each recipient of the sanctioning procedure, including jointly and severally obliged legal persons, which can be exercised within 30 days from the date of submission of the notification of sanction. The parties concerned can request through a specific application, duly justified and signed by them, an extension not exceeding 30 days, which may be granted, according to criteria of proportionality, also in relation to the characteristics in terms of operations and size of the intermediary and the complexity of the debits. Non-submission of defence documents shall not affect the follow-up of the sanctioning procedure. Counter-claims can be of an individual nature or be subscribed to by all parties concerned, including the legal representative of the specific legal person, or by some of them. The parties concerned may also indicate in the counter-claims the address to which subsequent communications relating to the sanctioning procedure should be sent. In order to ensure the affordability of the administrative action, counter-claims must be carried out in an essential and synthetic manner, reflecting the order of the notifications and attaching only documentation that is: a) relevant to the alleged facts and defence arguments carried out; b) not already known to the Central Bank; c) ordered and accompanied by a list. 8. The investigation is the evaluation of all the elements available for the purposes of the proposal to the statutory body responsible for the imposition of the sanction or its dismissal. The organisational unit responsible for the investigation stage: a) is in charge of keeping all deeds and documents used in the course of the sanctioning procedure; b) verifies that information was correctly exchanged with all recipients of the notifications, and that the possibility for the latter to appeal against the administrative procedure is safeguarded, in the forms and within the limits provided for by law; c) analyses all investigative elements filed in the sanctioning procedure's records and carries out, in the light of the defence briefs held by the parties concerned of the documents of part of and of the entire information collected, a thorough review of the notified debit transactions, and the significance of breaches and personal responsibility, according to the predetermined criteria in Article 31, paragraph 3 of the Central Bank Statutes, including the voluntary correction of tax returns; d) submits a justified proposal to the statutory body responsible for imposing or dismissing the sanction. 9. The adoption of the sanctioning measure or its closure is the responsibility of the Governing Council of the Central Bank, with the exception of the sanctioning procedures referred to in Title I of this decree that, as relevant to the management of the autonomous supervisory function referred to in LISF, refer to the Supervision Committee of the Central Bank as statutory body in charge. The procedure must be adopted within 30 days from the date of expiry of the term, be this the original or extended date, for the submission of counter-claims by the party that received the notification. 10. The closure of the procedure is also notified to the parties concerned. 11. The sanctioning measure must indicate: a) the notification of sanction referred to in above paragraph 6, annexed; b) justification for this measure also through an explanation of the evaluations concerning any counter-claims submitted by the recipients of the measure; c) determination of the amount of sanction to be paid and the methods of settlement; e) description of the criteria adopted to determine the sanction deemed as applicable pursuant to the provisions of Article 31, paragraph 3, of the Central Bank Statutes; e) the right to settle in a limited amount pursuant to Article 31, paragraph 9 of the Central Bank Statutes; f) indication of the appeal period and the competent Authority to apply with. 12. Notification of the sanctioning measure takes place in accordance with the terms of paragraph 5 above for the notification of breaches. 13. The notification may be followed by publication of the measure pursuant to Article 32 of the
Central Bank Statutes, including publication on the relevant website page and in the Official Bulletin Administrative Section and Advertisements. The publication, or lack thereof, of the sanctioning measure is covered by a specific provision within the measure itself. 14. Payment of the sanction may be carried out in the reduced amount provided for the voluntary settlement if it is carried out by the time limit referred to in Article 31, paragraph 7, of Law no. 96/2005. The entry referred to in Article 31, paragraph 12 of the Central Bank Statutes shall take place no earlier than six months from the date of notification of the sanctioning measure for twice the amount of the sanction. In case of a proposed administrative appeal, the six months shall start from the date of conclusion of the judicial proceedings". CHAPTER III Sanctions under the responsibility of the Financial Intelligence Agency Art. 10 (Amendment to Article 70 of Law 92/2008) 1. Article 70, paragraph 2, of Law no. 92 of 17 June 2008 is amended as follows: "2. If the breach is committed by the representative, by the members of the Board of Directors or by the Statutory Auditors, by a consultant carrying out outsourced control activities with anti-money laundering expertise, by a staff member or by an employee of a legal person or a body without a legal person, by an individual entrepreneur or a professional in the exercise of their functions or tasks, the legal person, the body, the entrepreneur or the professional are obliged jointly and severally with the breacher to pay the sum due by the latter". Art. 11 (Amendments to Article 72 of Law 92/2008) 1. Article 72 of Law no. 92 of 17 June 2008 is amended as follows: "Art 72 (Criteria for the application of administrative sanctions and sanctioning procedure) 1. The amount of individual sanctions is established by the Agency according to the principle of proportionality, i.e. determining the amount between the minimum and maximum amounts, according to the seriousness of the breach, i.e. also taking into account the following elements: a) duration of breach; b) size of designated party and, for financial parties, of their group; c) cases in which, with a single action or omission, a breach of various provisions is committed, or a number of breaches of the same provision; d) cases of repeated breach; e) impact on the stability and reputation of the national financial system; h) any voluntary correction of tax returns i.e. the activities carried out by responsible parties or by the designated party that they belong to, to eliminate or mitigate the consequences of the offence; g) degree of personal responsibility of parties subject to the sanctioning procedure, in relation to informative elements available, such as, by way of example, power structure, actual conduct, duration of appointment. 2. If not at fault, the following are not subject to sanctioning: a) the director or statutory auditor who discovered the breach arising from a Board resolution, and ensured that this finding was included in the company's books or communications, and reported it formally and timely to the Agency; b) additional parties who may be subject to sanctioning procedures who, having found the breach in exercising their functions, have submitted a formal and timely notification to the Agency.
3. No sanction is imposed on those specific actions or omissions that having already been reviewed in previous audits by the Agency, have not been deemed as committing a breach, except in cases where new documents or new information related to the above actions or omissions were subsequently acquired. 4. The sanctioning procedure: a) shall be initiated by the Agency within 9 months from the discovery of breaches by notifications of debit transactions to parties concerned, providing references to the audit, supervisory activity, defaulted expiry or documentation acquired from which the alleged breaches have emerged; b) is concluded - taking account of any counter-claims submitted by the parties concerned within 30 days, a term that may be extended as arranged by the Agency - within 90 days from the start of the procedure, i.e. from submission of the above notification, by closing or issuing the administrative sanction by means of a justified provision containing the repayment order. If an extension is granted for the submission of counter-claims, the period of 90 days is increased by the number of days granted as an extension. 5. The administrative sanction is settled by the sanctioned party upon payment of the sanctioning measure to the Agency within 60 days of notification. 6. The right to settle the sanction by immediate voluntary payment is granted to the party responsible for the breach and is exercised by payment of a sum equal to half of the imposed sanction. 7. Appeal in the Administrative Court against the sanctioning measure, in the manner and according to the terms referred to in Title II of Law no. 68 of 28 June 1989, is permitted, without prejudice for the Court to waive, in appeals against the sanctions imposed by the Agency, the provisions of Article 18, paragraph 4 of the same law. 8. Filing an appeal with a Court according to paragraph 7 above results in the suspension of the sanctioning measure, which therefore becomes effective and executive when the ruling rejecting the appeal becomes final. 9. After the expiry of the deadline for payment, if neither the sanctioned party nor the jointly and severally responsible legal person has paid the final sanction, the Agency may avail itself, for the collection of sums, of the collection procedure on a tax-roll basis, pursuant to Law no. 70 of 25 May 2004. The collection of administrative monetary sanctions will therefore take place in the same manner as the collection of taxes, fees, levies, sanctions and any other revenue due to the Most Excellent Chamber, State Entities and State Autonomous Authorities. 10. The Agency shall transfer the amounts collected as sanctions to the Most Excellent Chamber, net of any legal fees incurred for a defence against appeals referred to in paragraph 7 above; these sums will be charged to a specific chapter of the national budget. 11. The administrative monetary sanctions defined by this law are included in the list offered on a yearly basis by the Administrative Court of Appeal pursuant to Article 32 of Law no. 68 of 28 June 1989". Art. 12 (Amendments to Article 73 of Law 92/2008) 1. Article 73 of Law no. 92 of 17 June 2008 is amended as follows: Art 73 (Publication of sanctions) 1. The Agency may, in cases and manners that it considers to be most appropriate, disclose the monetary sanction measure and the recipients of the same measure only if the measure is final."
Art. 13 (Amendment to Article 74 of Law 92/2008) 1. Article 74 of Law no. 92 of 17 June 2008 is amended as follows: Art 74 (Application of sanctions) 1. The Agency shall ascertain administrative breaches and apply the sanctions provided for in this law according to the criteria and procedures described below. 2. Sanctioning activities are inspired by an approach: a) of a deterrent nature, such as to discourage a breach of the rules and repetition of the anomalous behaviour; b) of a proportional nature, in order to adjust the sanctioning measure according to the gravity of the breaches; c) of an objective nature, to ensure homogeneous opinions in the practical evaluation of different cases; d) of a transparent nature, towards the sanctioned parties whose possible counter-claims may integrate overall knowledge, completing the elements acquired in the course of the documentary and monitoring review. 3. The Agency, in compliance with the procedure described in the following paragraphs, shall verify breaches, lead the investigation, impose sanctions or notify the parties concerned that it interrupted the sanctioning procedure initiated against them. 4. The Agency's sanctioning procedure is divided into the following stages: a) notification of alleged breaches; b) submission of counter-claims and possible personal hearing; c) evaluation of all investigative elements; d) a proposal to the Agency's Director or Deputy Director to impose the sanction or suspend the procedure; e) adoption of the sanctioning measure or suspension of the procedure by the Agency's Director or Deputy Director; f) notification of sanctioning measure; g) any publication of the sanctioning measure. 5. For the purposes of the expiry of the terms referred to in the above-mentioned Article 72, paragraph 4, letter a), detection of breaches shall coincide with the date in which: a) the findings emerged through the inspection are notified to the designated party by personal delivery or dispatch of the relevant minutes; b) hard or soft copy documents that show the breach are received by the Agency. 6. The notification of breaches is communicated as provided for in Article 17 of Law no. 100 of 29 July 2013. 7. The notification of sanction, in addition to the formal elements suitable to qualify it as an preliminary statement of the sanctioning administrative procedure, shall contain: a) reference to the follow-up inspection, supervisory activity, defaulted expiry or acquired documentation from which the breach transpired; b) the date on which detection of the breach was made pursuant to paragraph 5 above; c) the description of the breach by act or omission with indication of the period in which it was allegedly committed in relation to the role and permanence in the appointment; d) indication of the breached provisions and related sanctioning rules; e) the invitation to parties whose breaches are contested and to the legal person jointly and severally responsible, to submit to the Agency, any counter-claims within 30 calendar days following notification; f) indication of the right of parties who are recipients of the objections to request a personal hearing within the same term, as originally set or extended according to the following paragraph 9, provided for the submission of counter-claims;
May 2014 Official Bulletin of the Central Bank of the Republic of San Marino Official Part Doc. III.3 g) the term for concluding the administrative procedure, pursuant to the provisions of the above mentioned Article 72, paragraph 4, letter b). 8. The notification of breaches, as detailed and communicated in the manner indicated above, can constitute an integral part of the inspection report with which the same alleged breaches are detected. 9. Submission of the counter-claims, in keeping with the principle of defence referred to in Article 15 of the Declaration of the Citizens Rights and Fundamental Principles of the San Marino Constitutional Order, is a right for each recipient of the sanctioning procedure, including jointly and severally obliged legal persons, which can be exercised within 30 days from the date of the notification of sanction. The parties concerned can request through a specific application, duly justified and signed by them, an extension not exceeding 30 days, which may be granted, according to criteria of proportionality, also in relation to the characteristics in terms of operations and size of the designated party and the complexity of the debits. Non-submission of defence documents shall not affect the follow-up of the sanctioning procedure. Counter-claims can be of an individual nature or be subscribed to by all parties concerned, including the legal representative of the specific legal person, or by some of them. The parties concerned may also indicate in the counter-claims the address to which subsequent communications relating to the sanctioning procedure should be sent. In order to ensure the affordability of the administrative action, counter-claims must be carried out in an essential and synthetic manner, reflecting the order of the notifications and attaching only documentation that is: a) relevant to the alleged facts and defence arguments carried out; b) not already known to the Agency; c) ordered and accompanied by a list. 10. The investigation is the evaluation of all the elements available for the purposes of the proposal to the Director or Deputy Director for the imposition of the sanction or its closure. The Agency: a) is in charge of keeping all deeds and documents used in the course of the sanctioning procedure; b) verifies that information was correctly exchanged with all recipients of the notifications, and that the possibility for the latter to appeal against the administrative procedure is safeguarded, in the forms and within the limits provided for by law; c) analyses all investigative elements filed in the sanctioning procedure's record sand carries out, in the light of the defences briefs held by the parties concerned, of the documents of part of and of the entire information collected, a thorough review of the notified debit transactions, the significance of breaches and personal responsibility, according to the predetermined criteria in Article 31 above, paragraph 72, including the voluntary correction of tax returns. 11. Adoption of the sanctioning measure or its suspension is under the responsibility of the Agency's Director or Deputy Director on a proposal by persons who, within the Agency, were responsible for the investigation. The procedure must be adopted within 60 days from the date of expiry of the term, be this the original or extended date, for the submission of counter-claims by the party that received the notification. 12. The closure of the procedure is also notified to the parties concerned. 13. The sanctioning measure must indicate: a) the notification of sanction referred to in above paragraph 7, attached; b) justification for this measure also through an explanation of the evaluations concerning any counter-claims submitted by the recipients of the measure; c) determination of the amount of sanction to be paid and the methods of settlement; d) description of the criteria adopted to determine the sanction deemed as applicable pursuant to the provisions of Article 72 above, paragraph 1; e) indication of the appeal period and the competent Authority to apply with. 14. Notification of the sanctioning measure takes place in accordance with the terms of paragraph 6 above for the notification of breaches. 15. The notification may be followed by publication of the measure pursuant to the previous Article 73, including publication on the relevant website page and in the Official Bulletin Administrative
May 2014 Official Bulletin of the Central Bank of the Republic of San Marino Official Part Doc. III.3 Section and Advertisements. The publication, or lack thereof, of the sanctioning measure is covered by a specific provision within the measure itself. 16. Payment of the sanction may be carried out in the reduced amount provided for the voluntary settlement if it is carried out by the time limit referred to in Article 72, paragraph 5. The entry referred to in the previous Article 72, paragraph 9, shall take place no earlier than six months from the date of notification of the sanctioning measure for twice the amount of the sanction. In case of a proposed administrative appeal, the six months shall start from the date of conclusion of the judicial proceedings. 17. In cases of a detected breach of Article 31 and of the provisions of Delegated Decree no. 74 of 19 June 2009 as subsequently amended, the Agency shall adopt the sanctioning measure under their responsibility in a direct form, i.e. without resorting to prior notification of debit transactions and the related period for submission of counter-claims, by including in the sanctioning measure each information element referring to the non-notification and without prejudice to the possibility of filing an appeal with the administrative court pursuant to Article 72, paragraph 7. CHAPTER IV REGULATIONS ON LIABILITY ACTIONS Art. 14 (Conditions and procedures of liability actions) 1. This Chapter contains provisions relating to liability actions towards dissolved administrative and control bodies, other company members, auditing companies, person responsible for audits and actuary of authorised parties, subjected to receivership or administrative compulsory liquidation procedures, pursuant to Law no. 165/2005 as subsequently amended. 2. The liability actions referred to in paragraph 1 above shall be subject to the general rules with the specific requirements contained in the following Articles of this Chapter, and may be carried out by the Commissioners only where the behaviour of the persons mentioned in the previous paragraph has given rise to actual damage for the authorised party and is limited to such damage. 3. The liability action can also be carried out by shareholders or third-party creditors within the limits of the damage caused to them. Art. 15 (Continuation of action) 1. The administrative bodies that succeeded the Commissioners shall continue liability actions initiated by the latter. They may nevertheless approve waivers and/or transactions concerning these actions. 2. To this end, the new directors may convene the Shareholders' Meeting following their appointment and include the topic in the agenda, in order to approve waivers and/or transactions if it is no longer considered convenient for the company to continue the liability actions. 3. The new directors shall notify the Central Bank of the decision regarding the waiver of the liability actions taken according to paragraph 2 above, highlighting the coherence of said decision in relation to compliance with the principle of sound and prudent management. 4. If the State has intervened through direct or indirect forms of financial support in favour of authorised parties subjected to of extraordinary administration or administrative compulsory liquidation procedures, the decision regarding the waiver of liability actions can be taken by the new directors subject to the favourable opinion of the Committee for Credit and Savings. 5. The Commissioners referred to in Articles 79, paragraph 1, letter a) and 86, paragraph 1, letter a), of Law 165/2005 have the right, following the start of the liability actions according respectively to Article 80, paragraph 5, of Law no. 165/2005 and Article 88, paragraph 5,
May 2014 Official Bulletin of the Central Bank of the Republic of San Marino Official Part Doc. III.3 of the same Law no. 165/2005, to waive and/or commence a transaction for these actions as deemed no longer convenient and/or appropriate for the company, following a consultation with the Supervisory Committee and the authorisation of the Supervisory Authority. Art. 16 (Responsibility of the company members, Auditing Company, appointed auditor and actuary) 1. The responsibility of the company members, Auditing Company, appointed auditor and actuary of the authorised parties arises only in cases where there has been a breach of duties imposed on them by specific legal or regulatory provisions, or provisions of instructions or circulars. 2. The following are exempt from liability: the company member, the auditing company, the appointed auditor and the actuary who, not being guilty, detected the breach or irregularity, taking care that this finding was included in the company's books or communications, and who reported said breach or irregularity formally and timely to the competent authorities. 3. The members of the Board of Statutory Auditors may not attributed any breaches of the financial audits under the responsibility of the Auditing Company and to the appointed auditor. 4. The liability action may be completed in relation to company members, the Auditing Company, the appointed auditor, and the actuary only by precise indication of the actions or omissions on which the action is based and limited to the damage deriving from the action or omission. 5. This action should clearly indicate any conduct attributable to the party that is held responsible by describing analytically facts or omissions, stating why the party can participate with others despite having a different role, considering the role of the individual representative by differentiating the position in relation to delegated powers, or anything else, to the top-level position in the company, and to the possible role as officer in addition to that covered within the company, of individual members and time in the office. Art. 17 (Responsibility of the Commissioners and members of the Supervisory Committee) 1. Without prejudice to additional responsibilities due to their status of public officers of Commissioners, Commissioners and members of the Supervisory Committee are subject to the same responsibilities respectively of the directors and statutory auditors of authorised parties. 2. Paragraph 9 of Article 80 of Law no. 165 of 17 November 2005 is repealed. 3. Paragraph 6 of Article 88 of Law no. 165 of 17 November 2005 is replaced by the following: "6. Liquidation Commissioners and the Supervisory Committee shall apply the seventh and eighth paragraph of Article 80 of this law." Art. 17bis (Appointment of Commissioners and members of the Supervisory Committee) 1. Article 79, paragraph 6, of Law no. 165 of 17 November 2005 is amended as follows: "6. The Supervisory Authority defines the requirements for becoming a Commissioner or a member of the Supervisory Committee. The Supervisory Authority shall appoint as Commissioner or as a member of the Supervisory Committee, professionals registered with the Association of Lawyers and Notaries of the Republic of San Marino and/or to the Association of Chartered Accountants of the Republic of San Marino". 2. The following paragraph 5 was added to Article 86 the Law no. 165 of 17 November 2005: "5. Professionals registered with the Association of Lawyers and Notaries of the Republic of San Marino and/or to the Association of Chartered Accountants of the Republic of San Marino are appointed as liquidation Commissioner or as a member of the Supervisory Committee".
May 2014 Official Bulletin of the Central Bank of the Republic of San Marino Official Part Doc. III.3 Art. 18 (Prescription of liability action) 1. The prescription of the liability action against company members, the Auditing Company, the appointed auditor and the actuary of authorised parties, is regulated by Article 117 of Law no. 47 of 23 February 2006, as subsequently amended. 2. Exception to the prescription of the liability action is decided by the Judge as an exception not reserved for the final judgement. 3. The extraordinary administration and administrative compulsory liquidation of authorised parties do not constitute insolvency proceedings pursuant to the requirements of Article 117, paragraph 5, of Law no. 47 of 23 February 2006, as subsequently amended and supplemented, unless the state of insolvency of the authorised party had already been declared pursuant to the provisions of Article 98 of the Law no. 165 of 17 November 2005. Art. 19 (Extension of the rules referred to in this Chapter) 1. The rules contained in this Chapter IV, and especially the principles which can be inferred from them, apply, in so far as they are compatible, also to liability actions brought against directors, statutory auditors of auditing companies and officers responsible for auditing of companies that are not included among the authorised parties pursuant to Law no. 165 of 17 November 2005. CHAPTER V Transitional and final provisions Art. 20 (Access to company documentation) 1. The legal person jointly and severally responsible for the breaches, shall provide to recipients of the notification of sanctions, a copy of the documentation and information, if requested by the latter, if relevant and useful in order to ensure their full and informed right to defence for the protection of their individual legal positions. 2. Disclosure of information and documents pursuant to the above and within the limits specified therein shall not constitute a breach of confidentiality requirements, even if carried out against parties who are no longer invested in the offices or functions concerning which breaches had been alleged against them. 3. The provisions referred to in the above paragraphs shall also apply in relation to access to company documentation by the defendant parties in liability actions according to the previous Chapter IV, in order to allow them to effectively exercise their right of defence. Art. 21 (Publication of sanctions in the Official Bulletin) 1. In Article 2 of Delegated Decree no. 192 of 10 December 2010, after letter h), the following letters are added: "i) the sanctioning measures referred to in Article 32 of Law No. 96 dated 29 June 2005 subject to publication as provided for by the Central Bank of the Republic of San Marino (CBSM) within the measure itself". l) the sanctioning measures referred to in Law no. 92 of 17 June 2008 subject to publication as provided for by the Financial Intelligence Agency within the measure itself".
May 2014 Official Bulletin of the Central Bank of the Republic of San Marino Official Part Doc. III.3 Art. 22 (Transitional and final provisions) 1. The provisions of the above Chapters II and III shall also apply to breaches already detected, as defined by the afore-mentioned Article 23, paragraph 4 of Decree no. 76/2006 and Article 74, paragraph 5 of Law no. 92/2008, but for which, on the date of entry into force of this delegated decree, the notification had not yet been issued, if under the responsibility of the Central Bank, or the sanctioning measure had not yet been issued, if under the responsibility of FIA. 2. For all breaches referred to in the previous paragraph, which were detected prior to the date of entry into force of this delegated decree, the term for notification of breaches, by way of derogation from the afore-mentioned Article 31, paragraph 6, letter a) of Lawn no. 96/2005 and Article 72, paragraph 4, letter a) of Law no. 92/2008, and thus regardless of the term established therein, shall expire on 30 April 2014. 3. In relation to the sanctioning measures already issued by the Central Bank and by the Agency on the date of entry into force of this delegated decree, and which have not been defined by payment of the sanction and/or have not been the subject of judgement issued according to Title IV of Law no. 69 of 28 June 1989, the right is provided for the offender to carry out the voluntary payment of half of the imposed sanction; this right is recognised in exceptional cases and must be exercised within the peremptory time limit of sixty days from the date of promulgation of this decree. 4. The inspection reports of the Central Bank and of the Agency, which constitute the prerequisite of any sanctioning measures, shall be notified by the Central Bank to the legal person concerned and by the Agency to the designated party, no later than sixty days from the date of closure of the investigation as notified to the recipients of the supervisory activity. Art. 23 (Pending judicial appeals) 1. Administrative judicial appeals pending in Court through administrative sanctions governed by this delegated decree, and which have not yet been defined, are intended as filed as judicial appeals as referred to in Title II of Law no. 68 of 28 June 1989. 2. The terms referred to in Article 16, paragraph 3, of Law no. 68 of 28 June 1989 are effective as of the promulgation date of this decree. Art. 24 (Abrogations) 1. Rules in contrast with this decree are hereby repealed. Done at our Residence, on 19 May 2014/1713 s.f.r. THE CAPTAINS REGENT Valeria Ciavatta Luca Beccari THE SECRETARY OF STATE FOR INTERNAL AFFAIRS Gian Carlo Venturini http://www.bollettinoufficiale.sm/on-line/ricercabu?operation=getdocbu&id=91e1cf8afe6ed266e2a7c1438f5e9d0e1fb45287