Table of contents
Top stories
Conversion into Law of the so–called “Growth Decree”: tax incentives for ELTIFs subscribers and introduction of the so-called SISs
As part of the measures recently issued for increasing Italy’s economic growth, it is worth mentioning:
- a tax exemption on returns (under certain conditions), as well as on successions, related to investments in ELTIFs (European long-term investment funds closed and dedicated to SMEs, whose assets must be invested for least 70% in shares and bonds of non-financial companies either unlisted or listed with a capitalisation lower than 500 million Euro) made in 2020 and held for at least 5 years towards Italian SMEs or those with a permanent establishment in Italy;
- the introduction of the so-called Società d’Investimento Semplice (“SIS”), constituted in the form of a SICAF (“Società d’investimento a capitale fisso”), which (a) can invest exclusively in unlisted start-ups that are in the testing, set-up or starting phases, and (b) are established with a stock capital of up to 25 million Euro, collected among professional investors or through business angels; e
- a new discipline whereby operations carried out through the so-called “support vehicle company” (in Italian, “società-veicolo d’appoggio”) in order to elevate the assets used to guarantee financial and banking intermediaries’ NPLs are fiscally neutral.
Tax incentives for investing in innovative start-ups and SMEs
The Ministry of Economy and Finance has recently issued a Decree containing tax incentives for investments in innovative start-ups and SMEs. In particular, a flat rate of 30% is established for all venture capital investments in innovative start-ups. Such tax incentive is also extended, under certain conditions, to investments in innovative SMEs with no more than 250 employees and a turnover lower than 50 million Euro or assets lower than 43 million Euro. The said provision will apply only to investments carried out in tax periods following that ongoing on 31st December 2016.
Corporate/Laws of contract
Presentation of the Italian Competition Authority’s Annual Report for 2018
On 2nd July 2019, the President of the Italian Competition Authority presented the annual report on the activity carried out in 2018, highlighting the advantages of free competition for Italy’s economic growth and productivity and denouncing the rising of competitive distortions and asymmetries within the Single European Market. In particular, the negative effects of unfair tax competition within the EU have been pointed out, and, in the banking sector, it has been highlighted how some Member States (among which, Italy) have been penalised by the publication of the EU Commission’s interpretive guidelines on state aid, subsequently denied by the EU Court of Justice (see news at page 14, below). In addition, the President has referred about the outcome of the survey on Big Data jointly launched by the Authority in collaboration with the Italian Communications Authority and the Italian Privacy Authority (see news at page 28, below).
Published the EU Directive on restructuring and insolvency
The Restructuring and Insolvency Directive has been recently published, which establishes rules regarding:
- preventive restructuring frameworks, in order to prevent the debtor’s insolvency;
- procedures leading to the discharge of the insolvent entrepreneur’s debits; and
- measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt.
The Directive aims to ensure that “healthy” companies, which are going through some financial difficulties, are helped to continue to operate. The deadline for national transposition is scheduled for 17th July 2021.
Decree “Sblocca Cantieri”: new thresholds for the mandatory appointment of the internal auditors (“collegio sindacale”) or external auditor (“società di revisione”) in limited liability companies
The so-called “Sblocca Cantieri” Law (aimed at revitalising the public infrastructures’ market) establishes, inter alia, urgent provisions for public contracts, infrastructural interventions and building activities. During the conversion into law, several changes have been made to the original text of the Decree, including those relating to the obligation to appoint the internal auditors’ supervisory body (“collegio sindacale”) or the external auditor (“revisore”) in the limited liability companies, which is also triggered in the event that the latter have, for two consecutive financial years:
- assets or revenues equal to four million Euro; and
- twenty employees, on average, during each financial year.
The termination of the above obligation is, conversely, linked to the failure to exceed the afore-said thresholds for at least three consecutive financial years.
Powers-duties of non-executive directors and breach of the obligation to take actions towards conservation of the company’s assets
A non-executive director who does not notice the hints of an illicit management of the company by the managing director, may be held liable for breach of the duty of care. In fact, the former is obliged not only to assess the performance of the company’s management, on the basis of the information provided by the managing director, but also to ask for clarification and/or missing information, if any.
Moreover, in the event of winding-up of the company, the violation of the directors’ power-duty to take any action aimed at keeping the company in good shape derives not only from an active conduct that could harm the company’s assets, but also from the omission of acts that are necessary to preserve the integrity of such assets.
Court of Appeal of Milan, decision no. 2513 of 10th June 2019.
The allocation of risk in the financial leasing
In a financial leasing contract, the clause that charges the user with the risk of the theft of the covered asset is not vexatious, as it governs only the liability for loss of such asset in accordance with the rules for the installments sale with reserved ownership. The above clause has a compensatory purpose, for it cannot be qualified as a penalty clause, being aimed solely at allocating (upon the user) the risk from loss of the asset for fact not attributable to the user itself, without being necessary to that end the occurrence of an event of default.
Shareholder’s loans are subrogated also during the life of the company
The reimbursement of shareholder’s loans in favour of their company is subrogated to the payment of other creditors, not only when there is a formal concurrence of corporate creditors, but also during the life of the company. The latter cannot, in fact, reimburse the shareholder that is in a difficult economic-financial situation, which can occur both when the loan has been granted and when the request for reimbursement has already been made. In such cases, the Board of directors must verify the existence of the debts’ unbalance, and the competent judge will have to reject the claim for loan’s reimbursement if the above unbalance still persists at the time when the decision is issued.
Nullity of the indexation clause providing for Euribor as reference rate in a loan agreement
In a loan agreement, the interest rate’s indexation clause null and void for it is contrary to mandatory rules and the public economic order, in the event that it is referred to Euribor as registered in the period between 29th September 2005 and 30th May 2008, and sanctioned by the European Commission. The above nullity can also be claimed by the judge (“ex officio”), as it is aimed at protecting fundamental interests, among which of the market’s correct and the equality functioning among parties.
Civil Court of Pescara, decision no. 577 of 28th March 2019.
Banking law
How the Bank of Italy complies with ESA’s Guidelines and Recommendations
The Bank of Italy (“BoI”) has recently clarified the procedures that intends to follow in order to comply, in whole or in part, with ESAs (European Supervisory Authorities)’ Guidelines and Recommendations. In this respect the BoI may either issue:
- regulatory acts, which are binding for their addressees; or
- supervisory non-binding guidelines, which illustrate to the addressees how to comply with EU or national laws or regulations. Intermediaries’ non-compliant behaviour with respect to Guidelines and/or Recommendations, would be then assessed by the BoI, which may, if necessary, adopt ad hoc measures and sanctions.
ECB’s opinion on the Bank of Italy’s shareholding structure and gold reserves’ ownership
The President of European Central Bank (“ECB”), Mario Draghi, has recently sent an opinion to the Italian Parliament on a new draft law regarding the BoI’s shareholding structure, as well as
the management of its own gold reserves. One of the main criticisms
moved to proposed law concerns the possible damage of the principle of institutional independence that would result from the transfer of BoI’s shares, currently held by private companies, to the Ministry of Economy and Finance, at a nominal value of 1000 Liras. Moreover, the ownership of gold reserves at “exclusive title of deposit” on behalf of the Italian Government would prevent the BoI from fulfilling its own functions, and the transfer of foreign currencies’ reserves from the BoI’s balance sheets to the Italian State would be against the principle of BoI’s financial independence.
The obligation to consult on the adoption of regulatory or general content acts
In order to update the current system for the adoption of regulatory or general provision and adapt it to the EU regulatory framework, whilst guaranteeing an effective exercise of its own regulatory powers, in compliance with the proportionality principle, the BoI has recently established that its issuing provisions must be submitted to public consultation, except in the case of necessity and urgency. The BoI evaluates the comments received only if they are pertinent and relevant, without being obliged to provide for a feedback on each of them and without the latter constituting a constraint on the BoI’s examination. In any case, the BoI gives account of the assessment of the comments received through the so-called “consultation report”.
The Bank of Italy on the definition of the status of default
In implementation of EU Regulation no. 575/2013, which establishes the conditions for considering a debtor in default, the BoI has recently modified the general part of the Accounting Matrix, thereby impacting on its circulars concerning the compilation of supervisory reports on a consolidated basis and bank’s balance sheet. The addressees being banks, banking groups and Financial Intermediaries, which – in order to identify and classify impaired credit exposures – must take into account European Banking Authority’s (“EBA”) Guidelines no. 07 of 28th September 2016 on the application of the default definition. The new provisions concern also the treatment of past due/ impaired overdrafts, the introduction of objectively relevant thresholds to be used for the classification of overdue credit exposure in case of a default, as well as the criteria for calculating the days of overdue. The new provisions will enter into force starting from 31st December 2020, in relation to the financial statements closed or in progress at such date. However, the addressees may voluntarily beforehand comply with them changes.
Changes to the Bank of Italy’s provisions on transparency and intermediaries-clients’ relationships in implementation of PAD
As a result of the transposition in Italy of PAD (Payment Account Directive; no. 2014/92/UE of 23rd July 2014),
changes have been introduced (which will apply from 1st January 2020) to the rules on transparency, which concern legal base, information sheet also in case of door-to-door selling, and the obligation provide clients, attached to the agreement, with the summary document, as well as with the cost indicators, both pre-contractual and periodic, and the simplified information document in case of electronic money.
Bank of Italy’s provision on cash management
The BoI has recently specified the obligations to be complied with in respect of the cash management activity. Cash managers must have adequate technological resources and adopt documented procedures. They must also set up an internal controls system capable of promptly identifying any shortcomings and anomalies. Moreover, they must withdraw from circulation and transmit to the Supervisory Authority banknotes, which have been classified as fake following an authenticity check. Furthermore, the BoI can acquire information, deeds and documents and carry out inspections, as well as order corrective measures against cash managers.
Court of Justice of the European Union: FITD’s support does not amount per se to State aid
The Court of Justice of the European Union (“CJEU”) has recently overruled the EU Commission’s decision dated 23rd December 2015, by means of which the latter deemed the measures taken by Fondo Interbancario di Tutela dei Depositi (FITD) in favor of Banca Popolare di Bari, in order to allow the latter to acquire Cassa di Risparmio di Teramo (Tercas), as amounting to State aid. The CJEU has clarified that a national deposits guarantee scheme (“DGS”) can intervene in a bank’s crisis without per se breaching EU laws on State aid. In addition, according to the Court, the BoI’s authorisation to FITD in the case at issue does not represent by itself evidence of State aid.
Starting date of calculation of interests in case of non-existing debt
The term “claim” referred to in article 2033 of the Civil Code, which regulates the payment of non-existing debt, does not refer exclusively to the lodging of the petition by means of which a proceedings is initiated but it includes also out-of-court actions aimed at declaring the other party’s default. Therefore, the starting date for the running of interests’ repayment charged on the bona fide borrower may be anticipated with respect to the Court’s decision.
Interest accrued in the preventive seizure and attachment of credits
According to the Supreme Court, both in the case of preventive seizure and attachment of credits, the custodian of the foreclosed sums must pay interests in the same amount envisaged in the agreement from which the attached credits originate and with the starting dates provided therein. Interests, being qualifiable as proceeds of the foreclosed assets, will be added to the latter’s value.
On the bank’s facilitated proof to fix the pledge’s issuing date
The Court of Cassation has clarified that a bank can prove the date on which a pledge was established by any means of proof. Yet, for pre-emption purposes, the pledge must result from a written deed bearing a data certa, which contains information on the credits or on the pledged asset. Therefore, a written deed bearing a data certa, which contains only a generic description of the pledged asset is not deemed to be sufficient for effecting the pledge.
Financial law
Recent case-law on swap contracts
The Civil Courts of Rome and Mantua have recently ruled on some aspects of the swap contracts, pointing out that:
- the latter fall within the scope of the so-called “asymmetrical contracts”, in so far as the investor is in a position of cognitive weakness vis-à-vis the intermediary. In fact, the former is fully protected only when is fully aware of the risks related to the swap contract and consciously subscribes to it. Therefore, in the event of a serious breach of information obligations, the bank may be held liable vis-à-vis the investor and the contract early terminates for default.
- with regard to an interest rate swap (“IRS“) entered into for risk hedging purposes relating to interest rates variations, the client is entitled to the restitution of what already paid in the event that related contract does not pursue an interest worthy of protection and may be thus held ineffective ab initio. This happens when:
- (i) the transaction is not explicitly aimed at reducing the risk underlying other positions held by the client;
- (ii) there is not a strict correlation between the technical and financial characteristics of the asset being hedged and those of the IRS used for such purpose; and
- (iii) no internal control procedures have been adopted, which can ensure that the above conditions are met;
- the omitted indicate of the brokerage fees applying to each IRS constitutes a bank’s serious breach, as it prevents the client from receiving adequate information on the economic costs arising therefrom, with the consequence that the IRS contract can be early terminated for bank’s default, and the client is entitled to the restitution of the sums paid in the execution thereof.
Civil Court of Roma, Sec. VIII, decision no.3632 of 5th February 2019.
Civil Court of Mantova, Sec. II, decision of 24th June 2019, Judge Bernardi.
Civil Court of Mantova, Sec. II, decision of 19th June 2019, Judge Bernardi.
Financial services/FinTech
ESMA’s report on the licencing of FinTech firms
The European Securities and Markets Authority (“ESMA”) has recently published a report on the licencing regimes of firms operating in the FinTech sector. The report is the result of two recent surveys carried out by the same Authority, which are aimed at identifying:
- gaps and issues in the existing EU regulatory framework, especially in relation to crypto-assets, ICOs and DLT; and
- ways in which National Competent Authorities (“NCAs”) employed the concepts of ‘proportionality’ and ‘flexibility’ upon granting the license to FinTech firms.
The afore-said surveys have also pointed out the need for a greater clarity regarding the governance and risk management processes associated with cyber-security and cloud outsourcing. Finally, a discussion is currently going on, inside ESMA as to the need to introduce an EU-wide holistic crowdfunding regime, particularly for those based on non MiFID II financial instruments.
ESMA’s report on the licencing of FinTech firms across Europe of 12th July 2019.
ESMA consults on the undue short termism
Aimed at gathering evidence on potential short-term pressures on corporations stemming from the financial sector, ESMA has recently published a questionnaire, addressed to investors, issuers, UCITS management companies, self-managed UCITS investment companies, AIFMs and the trade associations of financial market participants, inviting them to respond no later than 29th July 2019, which aims to ESMA invites. By this December, ESMA will deliver a report to the European Commission, which will present evidence and advice on potential undue short-termism.
“ESMA consults on short-termism in financial markets” of 24th June 2019.
EBA report on FinTech activities
The EBA has recently conduct an analysis on the regulatory framework applicable to FinTech firms when accessing the market. The Report illustrates the approaches followed by NCAs when granting authorisation for banking and payment services.
The national regulatory status of FinTech firms shows two main developments: (a) the shift from non-regulated to regulated activities (notably, payment initiation services and account information services now being subject to PSD2); and (b) the ancillary/non-financial nature of the services provided by FinTech firms not subject to any regulatory regime, with the exception of crowdfunding and, to some extent, to activities related to crypto-assets. EBA has found that proportionality and flexibility principles are applied in the same way by NCAs irrespective of whether the applicant presents a traditional or innovative business model and/or a delivery mechanism.
New EU Regulation on the transparency of online platforms
A new EU Regulation on promoting fairness and transparency for business users of online intermediation services has been recently published. Online intermediation services and online search engines are deemed to have an intrinsic cross-border potential and to be of particular importance for the proper functioning of the EU’s internal market. The underlying purpose of the new provisions being to take advantage of online platforms’ economy and raise consumers’ trust in the latter. To this end, the Regulation applies to providers of such services, regardless of whether they are established in an EU Member State or outside the EU, provided that final users be established in the EU and that service providers offer their goods or services to consumers located in the EU at least for part of their operations.
The FSB’s opinion about Libra
The Financial Stability Board (“FSB”)’s Chairman, Randal Quarles, in a recent letter to G20 Finance Ministers and Central Bank Governors has declared that crypto-assets despite not currently representing a risk to the global financial stability may create problems in the medium-long term in the absence of ad hoc international standards. Facebook’s willingness to launch its own crypto-currency, “Libra”, does not convince the FSB. Indeed, its Chair has underlined the need for a careful scrutiny by the Supervision Authorities in order to ensure that crypto-currencies are made subject to high regulatory standards. It is thus necessary to quickly coordinate regulatory responses to the new risks arising from Big-Techs moving into Finance.
Letter of the FSB’s Chair to G20 Leaders of 24th June 2019.
Consultation launched on changes to CONSOB Regulation on crowdfunding
A consultation has been recently launched on proposed amendments to the Commissione Nazionale per le Società e la Borsa (“CONSOB”) Regulation on crowdfunding in implementation of the 2019 Budget Law (Law no. 145 of 30th December 2018). Among the proposed main novelties, it is worth mentioning:
- the underwriting of bonds issued by an PLC would be reserved to professional investors, banking foundations, start-up incubators, investors supporting SMEs, as well as those who hold a financial portfolio of more than 260,000,00 Euro,
or to those who commit to invest at least 100,000,00 Euro and declare in writing, in a separate document, that they are aware of the risks associated with such investment, and, finally, to retail investors who are the recipients of a portfolio management or an investment advice service; - the provision of web boards would be included among the activities related to crowdfunding platforms’ management; and
- the offers promoted through online portals could have as object financial instruments issued by companies registered in Italy, in EU or in a country participating in the agreements on the EEA.
Prohibition of marketing binary options and contracts for difference to retail investors
CONSOB has recently banned the marketing, distribution or sale in Italy and from Italy of binary options and contracts for difference (the so-called “CFDs”) to retail investors for the purpose of ensuring a greater protection to the latter, in view of the complexity and lack of transparency of the above products, which entail, inter alia, a disparity between expected return and risk of loss, as well as of their marketing and distribution methods. CONSOB’s new measures will come into force the day after their publication in the Official Gazette and apply, as to binary options, from 2nd July 2019 and, in respect of to CFDs, from 1st August 2019, until revocation (if any).
CONSOB resolution no. 20975 of 20th June 2019. CONSOB resolution no 20976 of 20th June 2019.
ABI: Starting blockchain in Italy
Following the recent update of the Italian Banking Association (whose Italian acronym is “ABI”)’s agreement concerning the holding of mutual accounts among banks, a gradual transition from the system so-called “traditional tick” (“Spunta Tradizionale” to that based on the so-called “distributed ledger technology” (“DLT”), will start from 1st March 2020, aimed at simplifying and standardising the nationwide banking reconciliation process.
ABI’s press release of 15th June 2019 (text available in Italian only).
FSB’s report about the use of decentralised financial technologies
The FSB has recently published a report on the technologies that may reduce or eliminate the need for intermediaries or centralised processes in the Financial services sector. The consequent technological decentralisation could apply to in cross-border payments and settlements, the tokenisation of securitises, trade finance and insurance, and peer-to-peer lending. According to the FSB, the application of decentralised financial technologies could lead to a greater competition and diversity in the financial system, although it will be necessary, at the same time, tackle the potential risks to financial stability.
Cooperation agreement between CONSOB and the State Police against computer crimes
CONSOB and the State Police have recently entered into a cooperation agreement to prevent and fight cybercrimes. To this end, they will also enter into separate agreements with primary services providers. Safeguarding CONSOB’s IT systems is essential to ensure the correct and full performance of its functions. The three-year cooperation agreement is mainly based on information sharing and constitutes an important milestone in the fight against cybercrimes.
Trading on own account or as a direct counterparty does not represent a transaction concluded on a regulated market
The trading of securities takes place outside a regulated market whenever a bank stands as a direct contractual counterparty to its client, transferring to the latter the securities object of the transaction, regardless whether they were priorly held in portfolio or not. Indeed, the legal scheme of the sale (and not that of the mandate, which is typical of transactions carried out on regulated markets) applies even if the intermediary has previously purchased the securities on the market for the purpose of reselling them to the final client.
Civil Court of Cassation, Sec. I, order no. 14235 of 24th May 2019 (text available in Italian only).
Liability of a bank for breach of information duty related to the suitability assessment
A bank may be held liable, should its client, following an unsuitability assessment related to the provision by the former of an investment advice service, proceed with an investment on his/her own initiative and outside the investment advice contract, as the appropriateness assessment constitutes a minus as compared to the suitability’s one. In fact, in case, regardless of an assessment as “non suitable”, a client proceeds with the purchase of a given security, the intermediary may be held liable for not having put the client in a position to understand the risks underling the operation at issue.
Civil Court of Bolzano, Section I, decision no. 476 of 10th May 2019.
Compliance
Legislative Decree no. 231/2001
Vote exchange in elections: how the predicate offence (relevant for Decree 231/01) changes
It has been recently amended the crime of “vote exchange in elections” as of article 416-ter of the Criminal Code and included among the predicate offences pursuant to article 24-ter of Legislative Decree no. 231/2001. In particular, the novelties concern:
- the methods by which the crime can be committed, i.e. either directly or through intermediaries, also in exchange for satisfying interests or needs of a given mafia-type association;
- the provision that the person who promises to get votes may belong to a mafia-type association;
- the increase of related penalties, which are now, equal to those envisaged for the crime of mafia-type association; and
- the provision of an aggravating circumstance, in the event that the politician who has adhered to the criminal agreement is then elected.
Data protection
Big Data: guidelines and policy recommendations
On the basis of the results of a consultation launched in May 2017 aimed at understanding the implications of the development of the digital economy and the so-called “Big Data”, the Competition and Market Authority, the Communications Authority and the Privacy Authority have recently published eleven guidelines and policy recommendations. In particular, with regard to the intensive use of Big Data, it is suggested, inter alia, (i) the adoption of new provisions to protect transparency in the use of information, (ii) the strengthening of international cooperation between NCAs, (iii) the promotion of an ad hoc policy to be issued in the context of public policies, (iv) the reduction of the information asymmetry between users and digital operators, (v) the introduction of new tools to protect online pluralism, (vi) the reform of control over digital operations, as well as (vii) the strengthening of the NCA’s powers, as well as of the coordination among them.
Privacy Authority’s code of conduct for commercial information and the fight against market illicit behaviours
The Privacy Authority has approved the code prepared by the national association of commercial information companies (whose Italian acronym is ANCIC), with the aim of guaranteeing a greater protection for the surveyed subjects, fostering the alignment to the EU best practices, obtaining an impact assessment on data protection, and providing for a new supervisory body on the participating companies. At the heart of the code of conduct there is the accountability principle with respect to the compliance with the GDPR and the related Italian laws. The Privacy Authority has also allowed CONSOB to enter into an agreement for the transfer of personal data among equivalent NCAs operating in the European Economic Area (“EEA”) and those operating outside the EEA.
Anti-money laundering
Financial Intelligence Unit’s annual report for 2018
In presenting the annual report for 2018, the Financial Intelligence Unit (“FIU”)’s Director has pointed out the main risks of money laundering and financing of terrorism, as well as the
tools set up to face them. In particular, he has highlighted:
- the vulnerability of the financial market, and payment services, in particular, as well as the potential threats deriving from the use of virtual currencies;
- that the scheme for transposing the V AML Directive into national law, submitted to Parliament’s opinion, does not accept in full the EU’s indications;
- an increasing intensification of the collaboration with foreign FIUs; and
- the need to adopt evaluation processes vis-à-vis financial intermediaries that operate abroad, taking into account the specificity of the countries involved, contractual counterparties and fairness of the prices applied.
Annual report of Financial Intelligence Unit for 2018.
The Supreme Court applies the favor rei principle to money laundering related offenses
In anti-money laundering related matters, the principle “tempus regit actum” (whereby the applicable laws are those in force when the offence was committed) is derogated if the most recent administrative sanction (introduced by Legislative Decree no. 90/2017, which amended Law no. 231/2007) is more favourable to the sanctioned subject. According to the Supreme Court, such provision is applicable also to the pending proceedings of opposition to the administrative sanctions imposed under the law previously in force, by virtue of the favor rei principle introduced by Legislative Decree no. 90/2017.
Capital Markets
Consultation on proposed amendments to the Issuers’ Regulation
CONSOB has recently launched a public consultation (terminated on 17th July 2019) on some amendments to the Issuers’ Regulation, aimed at:
- implementing the obligation, enshrined in the Consolidated Law on Finance, for those who intend to acquire a shareholding in listed issuers equal to or greater than 10%, 20% and 25% of the target company’s stock capital, to declare the goals they intend to pursue in the course of the following six months (the so-called “declaration of intentions”);
- identifying the cases of exemption from the above obligation; and
- introducing an obligation upon the issuer, as well as upon those who hold a shareholding of more than 3%, but less than 5%, of the voting rights of an issuer that has lost its SME status to communicate to CONSOB and the investee company, respectively, the variation of the SME status and the value of the participation actually held.
The Italian strategy for the Artificial Intelligence
The so-called Group of 30 experts, established upon initiative of the Ministry of Economic Development at the beginning of the year, with the task of developing a national strategy on artificial intelligence and contributing to the European Commission’s Coordinated Plan, has recently issued a document, which provides for:
- measures aimed at countering, on the one hand, the concentration of data in the hands of a few companies and, on the other hand, potentially deceptive forms of advertising, whilst guaranteeing appropriate penalties and compensation forms for damaged victims;
- measures aimed at protecting individuals right, whether employed and not, to access professional refresher courses;
- the creation of a national governance for science and technology; and
- the identification of priority investment areas (IoT, manufacturing and robotics, financial and health services, transport, agrifood and energy, public administration, culture and digital humanities).
Proposte del Gruppo di esperti presso il Ministero dello sviluppo economico per la strategia italiana per l’intelligenza artificiale del 10 maggio 2019.
False scriptural money
Due to the spread on the web of references to the possibility of autonomously creating “scriptural” money, as well as of specific forms to be used for this purpose, the BoI has recently clarified that all such initiatives aimed at the creation of currency have no legal basis and amount to an abusive exercise of reserved activity, and it has urged all citizens not to recur to these forms of currency, since the latter have no legal value and are unsuitable to pay off debts.
Bank of Italy public notice of 6th June 2019 (text available in Italian only).
Corporate criminal law
EU Directive on access to information to combat money laundering and financial and tax crimes
In order to combat and prevent money laundering, financial crimes and the financing of terrorism, a new Directive has been recently published, which will have to be transposed by EU Member States into nation law by 1st August 2021. It aims to improve access to information and bank accounts by EU Member States’ FIU and NCAs, as well as to facilitate the use of the above information, for the purpose of contrasting money laundering and preventing tax crimes in the EU.
On the European Court of Human Rights’ latest decision on the “ne bis in idem” principle
Whilst ruling upon a case submitted to it by French Court, the European Court of Human Rights has recently clarified that the provision of punitive mechanisms, envisaged under the applicable criminal and administrative laws, against one and same market manipulation offence does not automatically imply a violation of the “ne bis in idem” principle (whereby one cannot be punished for the same relevant fact), being the latter excluded whether there is a sufficiently close connection, in substance and time, between the two proceedings (i.e. criminal and administrative). As a result, a breach of the above principle is realised in the absence of at least one of the following conditions: (i) the pursuit of complementary objectives, (ii) the predictability of dual penalty, (iii) the coordination between the competent authorities that have initiated the proceedings, and (iv) the provision of sanctions compensation mechanisms.
Procedural law
Appeal for Cassation lodged by a company resulting from a merger or transformation
To avoid the inadmissibility of the appeal for Cassation, a company resulting from a merger or a corporate transformation must prove its standing to sue, by demonstrating to have succeeded in one and the same position to the merged company.
The abuse of the proceedings before the Court of Cassation
The filing of a motion before the Supreme Court based on grounds clearly inconsistent with the content of the challenged decision or not self-sufficient, or containing a mere request to re-examine the merits of the controversy, or claiming a lack of reasoning, which does no longer fall within the scope of those required by the law, constitutes an unjustified disregard of the judicial system, for it is not aimed at protecting the right to defend, but at increasing the Supreme Court’s workload and hindering the reasonable length of Judicial proceedings. As a result, in such cases the applicant may be sanctioned for damages on the ground of abusive use of the right to challenge the Court of Appeal’s decision before the Court of Cassation.