Table of contents
Top stories
On the implementing provisions concerning tax incentives for investments in innovative start-ups and SMEs
Investors in innovative start-ups or SMEs, may benefit, also through UCITS funds, from tax incentives granted by the Relaunch Decree (see The Client Update no. 6/2020), provided that they receive or keep a statement from the legal representative of the beneficiary, certifying the amount of the investment at issue and the related tax relief. The latter lapses as a result of (i) not holding an investment at least for three years, (ii) assignment of shares or units, (iii) reduction of share capital, (iv) investor’s withdrawal, or (v) loss of one of the requirements for qualifying as a beneficiary.
The «accused»’s right to remain silent is intangible
Following a preliminary ruling having as object the compliance of national law provisions on market abuse with EU law, the EUCJ has recently ruled that the latter must be interpreted as allowing EU Member States not to penalise a person who, in an investigation carried out in him/her respect by a NCA (in the case in question, CONSOB) refuses to provide the latter with answers, which might bring about either an administrative liability that is punishable by means of sanctions having a criminal nature or a criminal liability.
EUCG’s judgement of 2nd February 2021 (Case C-481/2019).
On the competence over a claim for tax losses resulting from an alleged “mala gestio” of MEF’s officers
According to the Joint Chambers of the Court of Cassation, save made for the judicial unquestionability of the choices related to public debt management made by the competent government bodies, it falls within the competence of the Court of Auditors (Corte dei Conti) the judicial action for tax losses resulting from an alleged “mala gestio” of MEF’s officers, on the ground of taking operating procedures, as well as agreeing upon specific conditions having as object derivative instruments. The underlying rationale being that the case in question concerns a control of constitutionality and does not concern the merits of the administrative action.
Corporate/Laws of contract
Specified the obligations to be satisfied by companies managing open-ended pension funds
COVIP has recently clarified that managers of open-ended pension funds must (i) avail themselves of an effective governance and internal control system, as well as a contingency plan enabling to manage any critical aspects related to such funds, (ii) identify the latter’s risks, as well as its subscribers and potential beneficiaries, (iii) ensure that outsourcing does not negatively affect COVIP’s supervision and such funds’ operation, and (iv) disclose the remuneration policy relating to the person in charge of managing the afore-said funds.
New COVIP’s regulation on the modalities for joining supplementary pension funds
COVIP’s regulation on the new regime for joining supplementary pension funds will come into force on 1 May 2021. The joining takes place upon filling a subscription form, in compliance with rules of conduct (i.e., diligence, transparency, fairness), and may be collected also through a website, with the prior consent of the interested party, who must be further informed in relation to his/her withdrawal rights.
The Court of Milan rules on the duty to establish suitable corporate frameworks
Whenever a company is in financial crisis, the mere search for potential investors, which may be interested in the purchase of such company’s quotas or shares, as well as the mere assessment of the possibility to assign some of the company’s assets, amount to a conduct that is against the management duties laid down by the recently-amended Article 2086, paragraph 2, of the Italian Civil Code. In this case, the judge may remove the company’s Board.
Civil Court of Milan, decision of 18thOctober 2019.
Banking law
On the review of the crisis management and deposit insurance regimes
EU Commission’s consultation, aimed at gathering stakeholders’ views on the current (i) banks’ crisis management framework (in order to foster its efficiency and consistency among EU Member States), and (ii) deposit insurance framework (so as to strengthen depositors’ protection), by setting up a common ad hoc mechanism within the ambit of the EU Banking Union, will end on 21 April 2021.
ECB’s supervisory approach for strengthening consolidation in the banking sector
In a guide recently published, ECB has clarified that:
- when it assesses, from a prudential perspective, consolidation projects, such assessment is aimed at ascertaining that the entity resulting from the business combination is capable of meeting all prudential requirements envisaged for it, as well as that the business combination resulting from the transaction is sustainable;
- the governance and organisational structure of the business combination will follow the principles set out in EBA’s Guidelines on internal governance (EBA/GL/2017/11) (i.e., adequate composition of the management body, clear allocation of responsibilities and decision-making processes); and
- it will monitor the implementation of the integration plan adopted by the entity resulting from the consolidation, since the latter could bring some risks.
ECB’s Guide on supervisory approach to consolidation in the banking sector, 12th January 2021.
BoI’s guidelines on the new definition of EU default
The BoI has recently clarified that: (i) the new definition of EU default (see The Client Update no.1/2021) does not depend on the structure of the relevant accounting scheme, (ii) in the event of an assignment without recourse (“pro soluto”) of a commercial credit, in the ambit of a factoring contract, past due commences from the day following due date resulting from the invoice, (iii) the relevance of a past due credit exposure, for the purpose of stating an obligor’s default must be assessed taking account of the banking group’s overall exposure towards one and the some obligor, and (iv) reclassification as non-default, in accordance with the new rules, will refer only to the parties that are in default from 1 January 2021.
BoI’s consultation on intermediaries’ corporate officers’ suitability assessment
Within the ambit of a consultation on its draft provisions concerning intermediaries’ corporate officers’ suitability assessment, falling within the scope of the “Fit and Proper” Regulation (terminated on 19 February 2021), the BoI has specified (i) timing and modalities for carrying out such assessment (differentiated according to whether or not corporate officer’s appointment has been proposed by the shareholders’ meeting) and (ii) intermediaries’ disclosure obligations towards the BoI itself.
On the validity concerning the maximum overdraft commission
The validity of the maximum overdraft commission is made subjected to the possibility to determine its amount. As a result, the parties to an agreement must indicate therein either the percentage rate or calculation methods of such commission. In the absence thereof, the latter will amount to an unilateral imposition by the interested bank, not finding its legitimacy in a clause validly agreed upon among the parties thereto.
Civil Court of Siena, decision of 18th January 2021.
Financial law
Entry into force of the amendments to the Benchmark Regulation
Considering the need to undertake a thorough review of the scope of the Benchmark Regulation, especially with regard to non-EU countries’ benchmarks, the EU law-maker has deemed appropriate to extend the transitional period in force for the afore-said benchmarks until the end of 2023. Moreover, in order to foster the orderly functioning of the existing contracts (e.g., forward and swap derivatives), which refer to LIBOR, and avoid risks for the financial stability resulting from LIBOR’s cessation by the end of 2021, it has suggested the EU Commission to identify a benchmark that may validly replace LIBOR.
How to make the EU financial system stronger
According to the EU Commission, it is necessary to (i) strengthen the resilience of financial-market infrastructures (undermined by the unlawful extra-territorial application of unilateral sanctions), (ii) reduce excessive reliance on foreign financial institutions and on funding in foreign currencies (as they may hinder companies’ access to liquidity) and, finally, (iii) secure the flow of capital and financial services with third countries.
Just published ESAs’ draft RTS on ESG transparency
In order to enhance financial market participants and financial advisers’ disclosures on ESG factors, thus strengthening investors’ protection, ESAs have recently published draft RTS with regard to content, methodologies and presentation of sustainability-related transparency disclosures having as object:
- adverse sustainability impacts at financial product level; and
- ESG characteristics of a product and the benchmark used, which must be declared in pre-contractual information, on websites, as well as in periodic reports.
ESAs’s draft RTS on disclosures under SFDR, 2nd February 2021.
ESMA-NCA’s common supervisory actions
During 2021, ESMA and NCAs will monitor supervised entities’ compliance with EU law provisions having as object UCITS’ costs and fees, on the one hand, and will assess, on the other hand, the progress achieved by distributors and manufacturers of financial products with regard to the application of products governance rules, with the aim to achieve a supervisory convergence, ensure consistent application of the above mentioned rules, and enhance investors’ protection.
ESMA-NCAs’ common supervisory action on product governance rules, 1st February 2021.
ESMA-NCAs’ common supervisory action on supervision of costs, 6th January 2021.
ESMA’s consultation on appropriateness concerning “non-advised services”
In order to enhance clarity and foster convergence in the application of appropriateness and execution-only requirements, ESMA has asked stakeholders to comment, by 29 April 2021, on the current framework relating to (i) content (i.e., distinguishing between advised and non-advised services), (ii) features (i.e., reliability, accuracy, updating, effectiveness), as well as (iii) arrangements (i.e., policies and procedures) regarding the information that intermediaries must provide to investors following the appropriateness assessment.
ESMA states again on reverse solicitation
According to ESMA, whenever a third-country investment firm solicits existing clients or potential ones domiciled in the EU, or promotes or advertises investment services or activities together with ancillary ones, this may never be deemed as a service provided at the own exclusive initiative of the client, regardless of any contractual clause included therein, which states to the contrary. Moreover, ESMA reminds that the provision of investment services in the EU without a proper authorisation exposes firms to the application of sanctions, and investors to the potential loss of protection envisaged by EU law.
ESMA reminds firms of the MIFID II rules on reverse solicitation, 13th January 2021.
The takeover bids in Italy from 2007 to 2019
According to a survey recently published by CONSOB, in the period 2007-2019, in Italy, takeover bids over shares have been predominant. Among them, in particular, those which have had as object control changes and those associated with delistings (the latter growing strongly, together with the AIM market). The average premium paid to shareholders has been roughly equal to 13%, while equity yields involving bids have been negative, on average.
Auditors’ liability for “quoad functione” negligent behaviour
A bank or investment firm’s complex organisational structure does entail neither the exclusion nor any attenuation of the Board of auditors’ supervisory duties-powers. Therefore, in the event of ascertained shortcomings in the company’s procedures designed to ensure the latter’s effective management, auditors can be sanctioned on the ground of the so-called “quoad functione” negligent complicity in an offence, as a result of the breach of supervisory duty-powers, as well as of reporting such issues to the NCA(s) (in the case in question, the BoI and CONSOB).
Civil Court of Cassation, decision no. 1602 of 26th January 2021 (text available in Italian only).
On the intermediary’s liability concerning a portfolio management contract
Whenever, with regard to the portfolio management service, a change occurs in the client’s financial situation, which makes the portfolio management policy originally agreed upon no longer suitable, in order to avoid to be held contractually liable, an intermediary must suggest to the client itself changes to the above policy, by chosing, for instance, a more cautious profile.
Milan Civil Court, sec. I, decision of 5th November 2020.
Insurance law
Entry into force of the amendments to the Private Insurance Code
As a result of the above amendments, it has been:
- redefined the concept of “insurance and reinsurance distribution activity”, which is now referred to consultancy, contracts proposition or preparatory acts performing, as well as to drafting and collaboration in the relevant execution;
- added, as a requirement for the enrollment (on an ancillary basis) in the intermediaries’ Register, the possession by the insurance intermediary of continuing professional update;
- clarified that the recourse to an out-of-court ADR scheme is alternative to the so-called assisted negotiation’s procedures; and
- imposed the payment of a supervisory fee on members of the list attached to the Register of intermediaries operating in Italy under the freedom of establishment or to provide services.
New IVASS’ provisions on run-off portfolio transfer entered into force
In order to protect insurance beneficiaries in consequence of the so-called “run-off” portfolio transfer and guarantee the successful completion of the above transfer, in compliance with the sound and prudent management principle regarding insurance and reinsurance companies interested , IVASS has recently amended the definition of “portfolio” set out in Regulation no. 14 of 18 February 2018, thus allowing the afore-said companies to transfer their portfolios, which may consist of even just accidents.
IVASS’ public consultation on recovery and financing plans
According to IVASS’ draft regulation on recovery and financing plans, recently submitted to public consultation (which will end on 26 February 2021), upon the identification of non-compliance with the SCR, the insurance companies’ top management must draft a plan, to be submitted to the Board’s approval, as well as to the IVASS’s one. In particular, such plan must specify (a) date and circumstances related to SCR’s non-compliance, (b) cause of the crisis situation, as well as (c) a strategy for restoring SCR, attaching a report containing proper measures to this end.
Financial services/FinTech
On the use of blockchain in Italy in 2020
According to a survey recently carried out by the Milan’s Politecnico Blockchain and Distributed Ledger Observatory, in 2020 (save made for financial and insurance sector), due to COVID-19, there was a drop in investments in the above technologies equal to 23%, as compared to 2019. Existing projects, mainly related to specific applications or fields, prevailed. For 2021, it is foreseeable a strengthening of the existing platforms, as well as the creation of new ones. In both cases, they will have to comply with the evolution of the relevant regulatory framework.
Blockchain & Distributed Ledger’s Report on “Blockchain: the hype is over, get ready for ecosystems” of January 2021.
Compliance
Legislative Decree no. 231/2001
On the possibility to join a criminal proceedings as a civil party against a legal entity
Everyone may file a claim for damages against a legal entity, in the context of a criminal proceedings already established to ascertain the latter’s administrative liability pursuant to Legislative Decree no. 231/2001, as amended (the “Decree”). This being possible since the Decree contains, on the one hand, a reference to the provisions of the Italian Code of Criminal Procedure concerning, among others, the possibility to join a criminal proceedings as a civil party and, on the other hand, the principle whereby the legal entities’ administrative liability responds to a sanctionary model consistent with a claim for damages, which can be filed by the alleged damaged party.
Criminal Court of Lecce, order of 29th January 2021.
On the notions of “interest” and “advantage” of a legal entity deriving from offences related to health and safety at work
In the context of offences related to health and safety at work, the notions of “interest” and “advantage” refer either to the saving of expenses resulting from the lack of precautionary measures or the profit deriving from an increase in productivity, not hindered by the stringent compliance with the rules on the prevention of accidents at work. As a possible exemption from the administrative liability pursuant to the Decree, which may be triggered by the death or personal injuries of workers caused in consequence of the breach of the afore-said rules, the legal entity at issue must be able to prove that it has adopted, and effectively implemented, a reliable organizational model, designed to prevent similar crimes. In the absence thereof, the entity may be hence held liable.
Data protection
DPA’s opinion on the Ministry of Economic Development’s draft regulation concerning the so-called “opposition register”
DPA has provided for a positive opinion on the draft regulation issued by the Ministry of Economic Development concerning the opposition register, suggesting to replace, with regard to unsolicited communications, the expression “by telephone” with that “through an operator by telephone”, since automated processing require the consent of the user and the legislation in force expressly states that the operation of the opposition register refers only to the processing carried out by a physical person (the operator), by using a telephone.
Anti-money laundering
Can the author of a money laundering offence be the same of the predicate offence?
EU law provisions concerning AML require EU Member States to prohibit the conversion or transfer of goods, made while knowing that such goods were the profit of a criminal activity, for the purpose of concealing or disguising the illicit origin of the same or assisting any person who was involved in the commission of the above activity so as to avoid the legal consequences of his/her action. However, it does not hinder that a national legislation may states the possible coincidence between the author of a money laundering offence and that of the related predicate offence.
Tax police clarifies the scope of crypto-assets’ exchangers and custodial wallets duties
Pending the issuance of the Minister of Economy and Finance’s decree setting out times and modalities by which crypto-assets’ exchangers and custodial wallets must communicate to the Ministry of Economy and Finance their operations in Italy, and the resulting enrollment in the special section of the Register of moneychangers, national tax police has recently clarified that the above subjects must comply with the duties of clients’ due diligence, data storage and, reporting of suspicious transactions to the national FIU.
List of abbreviations
ADR: Alternative Dispute Resolution.
AIM: Alternative Investment Market.
AML: anti-money laundering.
Benckmark Regulation: Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment fund.
BoI: Bank of Italy.
CONSOB: the National Financial Markets Authority.
COVIP: the National Commission on Pension Funds.
DPA: Data Protection Authority.
EBA: European Banking Authority.
ECB: European Central Bank.
ESAs: European Supervisory Authorities.
ESG: Environmental, Social, Governance.
ESMA: European Securities and Markets Authority.
EUCJ: European Court of Justice.
“Fit and Proper” Regulation: the Minister of Economic and Finance’s Decree no. 169 of 23 November 2020, on banks, financial intermediaries, credit consortia, electronic money institutions, payment institutions, deposit insurance schemes’ corporate officers’ requirements and criteria.
FIU: Financial Intelligence Unit.
IVASS: the Institute for the Supervision of Insurance.
Private Insurance Code: Legislative Decree no. 209 of 7 September 2005, as amended.
Regulation no. 14 of 18 February 2008: IVASS Regulation on procedures for the approval of changes to the scheme of operations, for the authorisation of portfolio transfers, mergers and splits under Title XIV of the Private Insurance Code.
LIBOR: London InterBank Offered Rate.
RTS: Regulatory Technical Standards.
SCR: Solvency Capital Requirement.
SMEs: small and medium sized enterprises.
UCITS: Undertakings Collective Investment in Transferable Securities.