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Just published the Law Decree on access to credit and State’s golden powers in strategic sectors
The so-called “Liquidity Decree” has been recently issued, which sets forth, among others, measures to support enterprises with regard to access to credit, by means of a system of State guarantees granted through SACE Simest (belonging to Cassa Depositi e Prestiti’s group), as well as the strengthening of the Guarantee Fund for small and medium enterprises (“SMEs”). In addition, it has been introduced an extension of the State’s golden power in respect of companies operating in the banking, financial and insurance sectors.
Law Decree no. 23 of 8th April 2020 (published in the Official Gazette no. 94 of 8th April 2020; text available in Italian only), to be converted into law within sixty days.
Main EU and Italian law provisions issued in consequence of the health emergency
Here-below there is a brief overview of the main measures, taken at European and national level as a result of the Covid-19 global outbreak, concerning corporations, banks and financial intermediaries:
- European Commission Communication adopting a temporary framework on State aid, in order to enable EU companies to dispose of liquidity by means of direct grants, selective tax advantages and payments, State guarantees for bank loans, subsidized public loans, whilst guaranteeing banks that channel State aids to the real economy and providing insurance to the short-term export credit.
- European Securities and Markets Authority (“ESMA”)’s recommendations on the application of contingency plans and risk management requirements, communication of information on the Covid-19 impact, as well as listed companies’ disclosure requirements pursuant to the so-called Transparency Directive.
ESMA, Public Statement of 26th March 2020 and 27th March 2020.
- European Banking Authority (“EBA”)’s Guidelines on the treatment of the moratorium on loan repayments, which have identified criteria to be followed in its qualification, considered as an effective tool to address short-term liquidity difficulties caused by Covid-19 emergency.
- Recommendation of the European Central Bank (“ECB”), advising significant credit institutions to refrain from making dividend distributions and performing share buy-backs aimed at remunerating shareholders.
- The so-called “Cura Italia” Decree, according to which companies that have suspended or reduced their work activity due to health emergency can apply either for the ordinary layoff funds or for access to the ordinary allowance for a maximum period of 9 weeks. They have also been granted greater flexibility in the modalities and timing of carrying out ordinary and extraordinary shareholders’ meetings by allowing participation through telecommunication means and the casting of vote by electronic means or ordinary mail.
- Bank of Italy (“BoI”))’s Provisions by means of which, on the one hand, the time limits for certain banks’ obligations having as object recovery, AML, as well as operational and security risks plans have been postponed and, on the other hand, the afore-said ECB’s Recommendation on dividend distribution has been extended also to less significant banks.
Bank of Italy’s Press Release of 20th March 2020 and Recommendation of 27th March 2020 on dividend distribution policies of less significant Italian banks during the COVID-19 pandemic.
- The Commissione Nazionale per la Società e la Borsa (the national Authority for financial markets; “Consob”)’s Resolutions, whereby an extension of 60 days has been granted to intermediaries and online portals managers for the transmission (to Consob itself) of the periodic report on the carrying out of investment services and activities, as well as on their organizational structure.
Consob’s Resolutions nos. 21314 e 21315 of 25th March 2020.
- Financial Intelligence Unit for Italy (“FIU”)’s Provisions relating to the 30-day postponement for the transmission of communications, data and information, as well as for the obligation to declare transactions in gold.
- Ministry of Economic Development’s Circular, according to which companies that must represent to foreign counterparties impediments in the performance of contractual obligations may obtain from the Chamber of Commerce a proof of the occurrence of force majeure.
Ministry of Economic Development’s Circular of 25th March 2020 (text available in Italian only).
Corporate/Laws of contract
Consob’s Report on corporate governance
Consob’s Report on the corporate governance of Italian listed companies for 2019 has been recently published, which concerns ownership structures, corporate bodies, shareholders’ meetings and transactions with related parties, as well as a review of phenomena, such as increase in voting rights, the presence of women in the boards of directors and the institutional investors’ activism.
Consob’s Report on corporate governance of Italian listed companies for 2019 of February 2020.
Shareholders’ meeting at a distance
Participation to shareholders’ meeting with the aid of technology can involve all shareholders, including the Chairman, but in one and the same place indicated in the notice of call there must be at least the secretary (or the notary), as well as the persons in charge of ascertaining the identity of the participants attending in person.
Milan’s Notary Council, legal maxim no. 187 of 11th March 2020.
Legal nature of directors and statutory auditors’ liability
The corporate officers’ liability towards the company is contractual in nature. It is hence left to the shareholders to prove the existence of the alleged infringements and the causal link between the latter and the damages incurred, while directors and statutory auditors must prove that they have correctly fulfilled the obligations imposed on them by the law.
Innovative start-ups cannot go bankrupt
The five-year time limit set by law, whereby innovative start-ups cannot fail (i.e., cannot be subject to bankruptcy proceedings, but solely to the over-indebtedness crisis resolution procedure), starts to run from the setting up of the company and not from its registration in the Special Section of the Register of companies.
Court of Genova, decision no. 3 of 3rd November 2019.
Banking law
Consob – BoI’s Memorandum of Understanding on ADR
The Memorandum regulates forms of collaboration between the Securities and Financial Ombudsman (established at Consob in 2017) and the Banking and Financial Ombudsman (active within the BoI since 2009), whilst promoting mechanisms for the coordination and exchange of information on issues of common interest, as well as financial education initiatives.
BoI’s technical insights on NPLs’ management and recovery activity
The BoI has recently launched, through a direct contact with supervised intermediaries, some technical insights on the management and recovery of the so-called non-performing loans (“NPLs”) aimed at acquiring an overall view of the operators active in such sector, as well as at verifying the regulatory framework and the effectiveness of supervisory activities, whilst ensuring equal competitive treatment among market operators.
Financial law
Adaptation of national law to the Prospectus Regulation
A public consultation, recently launched by the Ministry of the Economy and Finance on the amendments to be made to Legislative Decree no. 58 of 24th February 1998 (the “Consolidated Financial Act”) in order to adapt the latter to the Prospectus Regulation (namely, Regulation (EU) 2017/1129) will end on the 10th of April. It has emerged the need to repeal the current provisions concerning form and content of the prospectuses, and make a significant terminological and defining adjustment of the surviving provisions.
IVASS and BOI’s Communication on the joint offer of insurance policies and loans
The BoI and the Institute for the Supervision of Private Insurance Companies (“IVASS”) have recently clarified that, in case of an offer of non-financial products in combination with a loan, banks and insurance companies must adopt all the necessary precautions to ensure the correctness of the relationships with their client, as well as the latter’s awareness on the characteristics, obligations and advantages deriving from the joint offer of such products. Non-compliance with such recommendations may result in legal and reputational risks, as well as in the application of sanctions.
Clarifications on “ESG (environmental, social, governance)” issues
Pending the issuance of measures on sustainable finance at EU level, Consob has recently drawn the attention of banks and intermediaries on the investor protection safeguards to be provided in relation to investment services and activities characterized by sustainability profiles. They include also those that can be inferred from ESMA’s guidelines on suitability and product governance requirements pursuant to MIFID II, as well as from European and national regulations on advertising and promotional information and communications.
Consob’s warning note no. 1/20 of 12th March 2020 (text available in Italian only).
Arrangements for reporting costs of investment services and activities, and ancillary services
A Consob’s public consultation recently ended, which had as object a recommendation proposal on the arrangements for the ex post reporting of costs and charges relating to the provision of investment and ancillary services. The ultimate goal being to align the way intermediaries comply with the applicable requirements and protect the investors’ right to receive from the former clear, correct and not misleading information.
Consob’s Plan for regulatory activities in 2020
The recently published Consob’s Plan on the main regulatory activities for 2020 provides, inter alia, for the issuance of second-level provisions implementing SRD 2 (Shareholders’ Rights Directive 2), V AML Directive, as well as for amendments to the Intermediaries and Issuers Regulations, aimed respectively at implementing the Insurance Distribution Directive (Directive 2016/97) and Regulation on the regulatory technical standards on the specification of a single electronic reporting format (Delegated Regulation (EU) 2018/815).
Consob, “Regulatory activities Plan” of February 2020 (text available in Italian only).
Nullity of IRS
The bank must prove in Court that the Interest Rate Swap (“IRS”) contract in question was entered into for risk hedging purposes relating to interest rate variations. If not, the contract is null and void due to lack of actual purpose.
Rome Court’s decision of 3rd March 2020.
Default termination of swap contracts
The bank must adequately inform the client about the characteristics of the financial instrument and the probabilistic scenarios that existed when the IRS contract in question was entered into, so as to enable the client to make an informed assessment of his/her investment. In the absence of such information, the client can invoke the early termination of the contract on the ground of serious breach by the bank, for it can be assumed that a properly informed client would not have entered into such contract.
Florence’s Civil Court, decision of 24th February 2020.
On the Supervisory Board’s supervisory duties
Even though the Supervisory Board has the same powers as the ordinary shareholders’ meeting, it also holds the supervisory authority attributed to the Board of Statutory Auditors, including the assessment of the adequacy of the company’s organizational structure, internal control system and administrative-accounting system.
Compliance
Anti-money laundering
On the role of intermediaries in combating money laundering
According to the BoI, in order to ensure full cooperation between prudential and AML supervision, intermediaries must ensure that directors and senior managers meet the requirements for the efficient performance of their duties and adopt an organizational and control system suitable to cover the risks they are actually exposed to.
Corporate criminal law
Strengthening Consob’s disqualification powers
The so-called “Decreto Milleproroghe”, recently converted into law, has conferred to Consob the power to request the blackout of trading websites declared abusive directly vis-à-vis operators who allow access to the web (i.e., web service providers). The same power can be exercised also against websites that provide investment services in Italy on a cross-border basis, under the freedom to provide services regime.
The civil judge’s jurisdiction on the omitted supervision of Consob and BoI on banks and intermediaries
According to the Supreme Court, the civil judge (and not the administrative one) is competent to rule on the liability claims brought by investors against Consob and/or the BoI for delayed, inadequate or omitted supervision on banks and intermediaries. The underlying rationale being that the afore-said authorities may be held liable for the consequences caused for violation of the rules of diligence, prudence and competence, as well as of the provisions on the performance of supervisory activities.
Procedural law
The civil judge’s jurisdiction on the nullity of surety for violation of national antitrust law
The jurisdiction on disputes concerning the nullity of a surety agreement containing clauses taken from the Uniform Banking Rules issued by the Italian Banking Association (“IBA”), which were declared null and void for violation of the national antitrust law (Law no. 287/90), is left to civil judge, and not to the specialised business sections of Civil Courts. Indeed, the judge must assess the coincidence between the surety and the text of the anticompetitive agreement in question.
Civil Court of Catanzaro, order of 5th March 2020.
Assessment of the abusive filling in of a loan application form
If a financing form was filled in following a “blank” signing of a franchise agreement, an action for fraud can be brought solely in the absence of a filling in agreement, but not if such filling has taken place “contra pacta“.