EU Commission adopts the Digital Services Act Package
EU Commission has just adopted a digital services package containing new rules whose goal is create a safer and more accountable digital space in the UE. It aims at safeguarding the fundamental rights of users of digital services, by introducing more rigorous transparency obligations for online platforms and strengthening the mechanisms for the removal of illegal contents. Moreover, it aims at protecting free competition within the digital market, in front of the massive presence of platforms acting as digital “gatekeepers” with respect to the market itself, by prohibiting unfair practices (such as that to blocking users from un-installing any pre-installed software) and requiring the above platforms to put in place certain measures which – in the event of non-compliance – will result in the application of sanctions by competent authorities.
EU Commission’s Digital Services Package Act of 15th December 2020.
Long-waited MEF’s Decree concerning suitability requirements of banks’ and financial institutions’ corporate officers just published on the Official Gazette
In order to strengthen the selection process of banks’ and financial institutions’ corporate officers, MEF has recently issued a Decree (entering into force on 30 December 2020), which adds to the existing suitability and professionalism requirements – made more rigorous – some fairness and competence criteria, the latter, to be applied in light of the proportionality principle. Moreover, independence of judgement, collective composition of the relevant bodies, time availability and limits on the number of offices that could be held (for significant banks) are qualified as new assessment profiles.
MEF’s Decree no. 169 of 23th November 2020 on suitability requirements of banks and financial intermediaries’corporate officers (in the Official Gazette no. 310 of 15th December 2020; text available in Italian only).
New incentives in favour of innovative start-ups
In order to promote the interaction between innovative start-ups and the innovation ecosystem’s actors (e.g., business angels and innovation hubs), which provide for services aimed at facilitating the former’s development, a decree has recently issued by MiSE, according to which start-ups that present an innovative development project may benefit from a non-repayable contribution (paid by “Invitalia”) equal to 80% of the expenses incurred for the implementation of their business plan, as well as a further contribution equal to 100% of the investment in start-ups’ venture capital, provided that the latter (a) be neither less than EUR 10,000,000, (b) nor be carried out through equity crowdfunding platforms, (c) nor involve the acquisition of a majority share-holding in the start-up in question.
Corporate/Laws of contract
How to strengthen economy according to G30
In order to encourage national policies aimed at supporting long-term economic resilience, while minimizing costs for taxpayers, G30 suggests to tackle the upcoming foreseeable shortage of liquidity and enterprises’ insolvency, by balancing the need to support such enterprises with the national macroeconomic goals, also leveraging on the expertise of private individuals/firms for asset allocation purposes.
On the legitimacy of the Italian jurisdiction over an action for damages for alleged breach of a shareholders’ agreement
The jurisdiction of the Italian Court prevails over that of the EU Member State where the defendant has elected his/her domicile in relation to an action for damages brought by a quota-holder of a società a responsabilità limitata (equivalent to a limited liability company) against another one (also acting as a director of such company), based on an alleged breach of a quota-holders’ agreement entered into by the same. On the contrary, with regard to actions brought against the company or its related to by-laws and articles of association, the jurisdiction where the defendant has his/her domicile prevails.
On the lawfulness of the statutory clause concerning the resolutions of the board of directors
The Council of notaries of Milan has deemed lawful the statutory clause that subordinates the validity of the board of directors’ resolutions to the favourable vote (or to the non opposing one) of one or more directors, identified by virtue of the office they hold or the cause of their appointment.
Just published ECB’s final guide on climate-related and environmental risks for banks
In response to banks’ lag behind their own climate-related and environmental risks disclosure, the ECB has published a guide advising them to manage such risks prudently when drafting and implementing their business strategies, governance and risk management systems, as well as to provide for a transparent disclosure made of both quantitative and qualitative data. In the second half of 2021, the ECB will assess whether or not there is a need to fill any banks’ gap identified in such sector.
ESAs rule on STS securitisation
ESAs have recently pointed out that a transaction designed as a STS securitisation loses such status in case one or more of the interested parties (i.e, originator, sponsor and/or SSPE) will result established in the UK after the end of the transition period. As a result, will also come to an end the preferential capital treatment available for investments in such type of securitisations. EU institutional investors are thus required to assess the impact of the afore-said change in the preferential treatment on their balance sheet and investments by 31 December 2020.
EBA’s guidelines on moratoria loan repayments’ reactivation
While monitoring the impact of the second pandemic wave, and in light of the restrictions imposed in many EU Member States, the EBA has reactivated – until 31 March 2021 – its guidelines on moratoria loan repayments. Moreover, in order to avoid that the possible enterprises’ insolvency be negatively reflected in the banks’ capital, it has established that:
- only loans suspended, postponed or reduced under general payment moratoria for not more than 9 months in total can benefit from the application of the afore-said reactivation; and
- banks must document their plans to the NCAs (in Italy, the BoI) so that the latter can assess whether exposures subject to general payment moratoria could turn into UTP.
On the settlement of transfer orders carried out by Italian intermediaries within a payment or securities settlement system subject to the English law
In order to preserve the current conditions for the participation of Italian intermediaries into payment and securities settlement systems governed by English law, the BoI has provided that – effective 1 January 2021 – national law governing the settlement of transfer orders will apply to Italian financial intermediaries participating in a multi-currency interbank payments system, as well as in that managed by central counterparties (such as “LCH Limited” and “ICE Clear Europe Limited”), both governed by English law, provided that, in the latter case, such central counterparty is recognized in the EU by means of an ad hoc measure.
BoI’s consultation on its supervisory provisions on remuneration policies and practices
BoI’s public consultation on its supervisory provisions on remuneration policies and practices, aimed at aligning them to the novelties introduced by CRD V regarding, in particular, banks’ obligation to define and implement a gender-neutral remuneration policy and identify the staff who take on significant risks for the bank in question or the group the latter belongs to, will end on 18th January 2021.
On the protective nature of the request for documentation concerning the current account contract
The client’s right to obtain from his/her bank copy of the documentation concerning the contract of current account cannot be restricted to the preliminary stage of a civil proceedings, nor can be made subject to compliance with formal constraints, since this would turn it from a protection tool into a potential harm for the bank’s client.
EU Regulations on the disclosure of the so-called “ESG factors”
In order to enable investors to compare benchmark on ESG factors and understand their scope, the EU Commission requires benchmark administrators to explain how ESG are reflected in each benchmark, and which of the afore-said factors have been taken into account in designing their benchmark methodology. Furthermore, with the aim to support the harmonisation of the methodology concerning climate benchmarks, the EU Commission suggests to lay down disclosure requirements to be satisfied by benchmark administrators when assessing the GHG emissions data they are going to apply.
EIOPA’s consultation on the so-called “Taxonomy Regulation”
EIOPA has recently launched a public consultation with the purpose of assessing whether the obligation to be respected by non-financial enterprises to publish information regarding the quota of their turnover, as well as capital and operating expenses, related to products, services, assets or procedures associated with economic activities qualified as environmentally sustainable, can also applies to insurance and reinsurance companies tout court or, should be adjusted, so as to make it appropriate and comparable with performance indicators specific of this kind of companies.
ESAs suggest amendments to EMIR Regulation
ESAs have recently published a report containing some proposals to amend EMIR, through the introduction of a temporary exemption of 18 months for intragroup transactions, of three years with regard to single-stock equity options or index options, and a further exemption from the application of bilateral margins and clearing obligation requirements to the replacement of UK counterparties with EU counterparties, in view of the end of “Brexit” transitional period.
Recent amendments to Consob’s TRP and Issuers Regulations
In order to transpose SHRD 2 into national legislation, Consob has recently amended:
- TRP Regulation, by introducing (i) a new definition of related party, (ii) a definition of directors involved in a TRP who are required to abstain from voting, and (iii) the duty to verify and the reserve of competence to resolve upon the administrative body for the approval of transactions of greater importance; and
- Issuers Regulation, with regard to both publication and contents of the report on the remuneration policy and the remunerations actually paid, as well as the new parameter (i.e., turnover) related to the SME’s definition applicable to listed companies also requiring issuers to notify to the public any change involving SME’s status, within 5 trading days as from 31 December 2020.
COVIP’s regulation on the disclosure of pension funds’ commitment policy and investment strategy
Strengthening the investment policies of pension funds (qualified as institutional investors) is the main goal of the recently-issued COVIP’s resolution, setting forth that information regarding the above policies must be communicated free of charge to the public on such funds’ website or through equivalent tools, provided that, in the latter case, the communication is made in a way that can be easily identified and accessed.
The BoI’s launches the so-called “Milano Hub”
With the aim to close the technological gap in the Italian financial services sector, foster innovation for the development of the Italian economy, as well as to make Milan the centre for financial innovation within the EU, the BoI has announced the launch of a new technological centre (the so-called “Milano Hub”), which will promote a dialogue between institutions, enterprises and academia. So far, twenty eligible projects, which involve the use of machine learning and/or big data for the automatic reading of provisions or macroeconomic analysis, have been already examined.
Entry into force of MEF’s Decree on the so-called “caskback redemption”
All persons above 18 years’ old resident in Italy, who usually make purchases through electronic payment systems, outside the scope of their business or profession, are entitled to a percentage cash redemption in proportion to each transaction executed by means of the afore-said systems, provided that each transaction (a) has taken place within the time-frame set forth by the law (1 January – 30 June 2021; 1 July – 31 December 2021; 1 January – 30 June 2022), and (b) they have voluntarily joined the interim program establishing the redemption itself through the so-called “IO APP” (set up and managed by PagoPa S.p.A.).
MEF’s Decree no. 156 of 24th November 2020 on conditions and criteria for the granting of reward measures for the use of electronic payment tools (published in the Italian Official Gazette no. 296 of 28th November 2020; text available in Italian only).
Just published G-7’s “Fundamental Elements of Cyber Exercise Programmes”
In order to strengthen financial system’s resilience, due to the growing number of cyber attacks, the G-7 has recently issued a document by which it advises NCAs and financial institutions to adopt an exercise program that takes account of stakeholders’ engagement, multi-year exercises’ planning, and, finally, identification of the key focus areas in order to adequately deal with such attacks.
DPA rules on “the right to be forgotten”
According to the DPA, the persistent availability on the web of news linked to persons’ names, having as object judicial events dating back in time, to which such persons have then resulted to be extraneous, harms their personal and professional reputation. Therefore, such persons have the right to obtain the erase of the above data from web search engines.
IOSCO’s consultation on access to market data
IOSCO has recently launched a public consultation (which will end on 26 February 2021), having as object the access to market data in secondary equity markets, by means of which it asks for the industry’s views on (a) the scope of data required to facilitate trading and its use (taking into account the type of investor), (b) methods of access to such data (pointing out that only a fair, transparent and timely access can positively affect free choice of investment, as well as competition and market efficiency), and (c) factors for processing and applying fees associated to the above data (in so far as the current standards hinder their functionality).
New EU class action available to consumers
By means of Directive no. 2020/1828, just published on the EU Official Gazette, the level of EU consumers protection has been increased, as qualified entities identified by EU Member States will be able to bring representative actions for injunctive measures, as well as damages against traders who – by infringing EU law provisions (concerning, among others, data protection and financial services) – may harm consumers’ rights. However, the latter must declare whether or not they intend to benefit from the relevant outcome of such representative actions.
List of abbreviations
BoI: Bank of Italy.
CRD V: Directive (EU) 2019/878 of the European Parliament and of the Council of 20 May 2019, amending Directive 2013/36/EU as regards exempted entities, financial holding companies, mixed financial holding companies, remuneration, supervisory measures and powers and capital conservation measures (“Capital Requirements Directive”).
DPA: Data Protection Authority.
EBA: European Banking Authority.
ECB: European Central Bank.
EIOPA: European Insurance and Occupational Pensions Authority.
EMIR: Regulation (EU) no. 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories.
ESAs: European Supervisory Authorities.
ESG: Environmental, Social and Governance.
ESMA: European and Securities Market Authority.
EU: European Union.
G30: Group of Thirty (an international organization of economists and academics which focuses on investigating economic and financial issues by examining the effects of policies taken in the public and private sectors).
Invitalia: The National Agency for Inward Investments and Economic Development, controlled by MEF.
IOSCO: International Organization of Securities Commission.
Issuer Regulation: Consob Regulation no.11971/1999, as amended.
NCAs: National Competent Authorities.
SHRD 2: Directive (EU) no. 2017/828 of the European Parliament and of the Council of 17 May 2017, amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement (“Shareholder Rights Directive 2”).
SMEs: Small and Medium Sized Enterprises.
SPPE: Securitisation Special Purpose Vehicle.
STS: Simple, Transparent and Standardised.
TRP Regulation: Consob Regulation no. 17221/2010, having as object transactions with related parties, as amended.
UTP: Unlikely to Pay.