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Top stories
The Supports Decree entered into force
With the aim of supporting businesses and workers affected by the pandemic, among the economic measures, the Italian Government has recently set forth (i) a non-refundable contribution for VAT no.’s holders who carry out business, art or profession activities, as well as for non-commercial and third sector bodies and start-ups, (ii) the setting up of a dedicated fund, for the purpose of helping large companies in financial difficulty. As regards tax measures, it is worth mentioning (i) the cancellation of tax returns in favour of people with an income lower than 30,000.00 euro, (ii) the facilitated definition of tax notices for those whose turnover is decreased, and (iii) the extension, until 30 April 2021, of the suspension of mandatory collection of taxes.
Conditions to access the national Relaunch Fund
In order to benefit from the participation to capital increases and the subscription of bond issues (either subordinated or convertible or to be mandatorily converted) carried out by the Relaunch Fund (see The Client Update no. 6/2020), joint-stock companies must have registered office in Italy, an annual turnover exceeding 50 million euro, be compliant with contributory and tax burdens, nor be condemned or subjected to restrictive measures concerning their own economic resources. Alternatively, the above mentioned companies must meet further requirements, which are differentiated on whether the Relaunch Fund operates under the EU Temporary Framework on State aids or under normal market conditions.
Corporate/Laws of contract
Converted into law the Milleproroghe Decree
The conversion law of the Milleproroghe Decree has, among others, extended to 180 days (from the original 120) the deadline for calling the ordinary shareholders’ meeting for the approval of financial statement as of 31 December 2020 and up until 30 April 2021, the possibility to carry out corporate meetings through simplified procedures. Moreover, it has extended to 30 June 2021 the operations of Guarantee Italy (see The Client Update no. 1/2021) with regard to the issuance of debt securities by companies affected by the pandemic, as well as the possibility of benefiting from a tax credit for setting up or conversion into a benefit company related costs.
Company’s directors’ liability for omitted supervision
Company’s directors’ liability for omitted supervision, for they have allowed the carrying out of transactions in breach of the duty of diligence, as well as the obligations to preserve the company’s stock capital, is not excluded by the fact that such company belongs to a group of companies. Indeed, the latter requires to assess directors’ conduct in light of the duties which must be complied with. The latter of compliance thereof must be however addressed by the directors vis-à-vis the company to which they belong to.
Banking law
EBA’s consultation on a common assessment methodology for granting the authorisation as credit institution
EBA’s consultation on guidelines on a common assessment methodology for granting the authorisation as a credit institution will end on 10 June 2021. According to the same, when assessing a licence application, NCAs should take into account, in respect of each applicant, (i) the proportionality principle, (ii) ML related risk, (iii) quantitative and qualitative aspects of the business strategy, (iv) determination of the level of capital, (v) governance and control systems, and (vi) information on shareholders and members.
ECB’s guide for calculating pecuniary penalties in consequence of regulatory breaches
In determining the pecuniary penalties issued against supervised entities for regulatory breaches, ECB assesses (i) the relevant circumstances relating to the breach, as well as the factors concerning the impact of the same and the misconduct of the supervised entity, (iii) the latter’s size, and (iv) any benefits deriving from the breach in question. In respect of the proportionality principle, once imposed the sanction, ECB will look at the appropriateness of the penalty, in light of the entity’s financial situation, as well as any potential negative impact thereon.
ECB’s guide on method of determining penalties for regulatory breaches of 2nd March 2021.
Entry into force of the second update to the BoI’s Regulation on collective asset management
The amendments to the Regulation have introduced (a) for open-ended UCIs, the obligation to carry out liquidity stress testing and adopt appropriate governance and liquidity risk procedures, as well as the possibility of deferring subscription fees and suspending the redemption of units (on behalf of investors), (b) for custodians, the responsibility for monitoring the implementation of the above mentioned stress testing, and (c) for asset management companies, the faculty to suspend redemption, if on the same day the related requests are submitted, which would result in divestments detrimental to the investors.
Clarified the criteria for classifying a given advantage as State aid
According to the EUCG, in order to be classified as State aid an advantage must, on the one hand, be granted, directly or indirectly through State resources and, on the other hand, be attributable to one and the some State. The latter implies also that the advantage must result from a measure taken by a State-owned company. In the case at issue, since Fondo interbancario di tutela dei depositi is a private entity, interventions carried out in favour of one of its member (i.e., the granting of guarantees in favour of Banca Tercas subjected to extraordinary administration) cannot be qualified as State aid. Consequently, EUCJ has rejected EU Commission’s appeal against the General Court’s judgement annulling the restitution order of alleged State aid, issued on 23 December 2015 towards Italy.
EUCG’s judgment of 12th March 2021 (Case C‑425/19 P).
On the competence over sureties drafted according to IBA’s model
The judicial competence over disputes concerning the nullity of a surety agreement, which contains clauses taken from IBA’s Uniform Banking Rules, declared anti-competitive by the BoI, is left to the specialised business section of civil Courts (Tribunale delle imprese), by virtue of the functional link between the so-called “downstream” contract (the surety agreement) and the “upstream” one (the cartel represented by the afore-said Uniform Banking Rules).
Civil Court of Cassation, decision no. 6523 of 10th March 2021 (text available in Italian only).
On competence over sanctioning measures for the breach of banking law provisions
The ordinary judge is competent both over sanctioning measures imposed by the BoI for the breach of banking law provisions, as they concern subjective rights, and the underlying administrative measures, as the latter contribute to the impact on the afore-said subjective rights. In addition, the ordinary judge has the discretionary authority, to be exercised within the limits prescribed by the law, to redetermine the amount of the sanctions imposed.
On the bank’s liability for breaching the duty of diligence
A bank that is late in cancelling a wire transfer made by mistake to a client’s current account from a cryptocurrency trading platform, infringes the duty to act with diligence. However, in the absence of evidence (even presumptive) of the damage suffered, the client is not entitled to any compensation.
Banking and Financial Ombudsman’s decision no. 24882 of 4th February 2021 (text available in Italian only).
Financial law
ESG credit rating agencies’ disclosure requirements
By means of its recently-issued guidelines, ESMA has pointed out that, where ESG factors were a key driver behind a change to a credit rating, rating credit agencies must (i) identify the type of factors that have been relevant, (ii) explain why such factors were material to the credit rating, and (iii) include a link to their own website, which contains a guidance explaining how ESG factors are considered as an integral part of the credit rating itself.
ESMA’s guidelines on disclosure requirements applicable to CRAs of 12th March 2021.
Entry into force of the adaptation of the Consolidated Financial Act to the Prospectus Regulation
Due to the amendments:
- public offering of EU financial products (other than open-end UCITS’ units) is governed by the Consolidated Financial Act, as well as by the Prospectus Regulation and must be preceded by CONSOB’s approval of the relevant prospectus;
- the latter must explain, in a simple and understandable way, all the relevant information that, depending on the characteristics of the issuer and the financial products offered, is relevant for an investor, in order to make an informed investment decision; and
- the placing intermediary, unless proven otherwise, is responsible for the damages suffered by the client, as a consequence of false information or omission thereof, contained in the prospectus.
CONSOB’s resolution on training and professional retraining of intermediaries’ personnel
As a result of the amendments to the Intermediaries Regulation effective from 31 March 2021, and in order to provide intermediaries with a greater flexibility in adopting the relevant organisational measures, CONSOB has resolved that the intermediaries themselves must assess methods of training and professional retraining of their own personnel, when the latter provide investment consultancy or information on financial instruments, investments or ancillary services. In addition, independent financial advisers and intermediaries’ personnel, who distribute insurance products must attend training courses (at least once a year), followed by a test certifying the actual possession of the acquired knowledge.
NCAs’s statements on the new sustainable disclosure obligations
In view of SFDR’s entry into application, on 10 March 2021, CONSOB has recently pointed out that (i) UCIs and IBIPs that, as of 10 March 2021, have ongoing offerings, must update their pre-contractual disclosures, (ii) those whose offerings were launched after 10 March 2021 must draft pre-contractual disclosure in compliance with SFDR, (iii) periodic reports (to be filed with CONSOB itself) must be supplemented by an explanation of the measures adopted and the internal control systems put in place to comply with SFDR. Moreover, the BoI, by adhering to ESAs’ Joint Supervisory Statement of 25 February 2021, has recently clarified that compliance with the draft RTS (see The Client Update no. 2/2021) will allow intermediaries to gradually align themselves with the new provisions and NCAs to timely prepare for an effective supervision of intermediaries’ compliance with the new obligations.
CONSOB’s warning no. 3/21 and Q&A on first application of SFDR Regulation of 4th March 2021.
On the nullity of the swap agreement
The bilateral risk, which characterises a swap agreement, does not imply per se that it must affect the interested parties’ assets equally. On the contrary, it implies that the parties thereto must indicate therein an appreciable risk component, which can be referred to the same parties. In the lack of that indication, the contract is null and void for lack of purpose.
Civil Court of Rome, decision of 28 th January 2021.
Financial services/FinTech
ESMA’s proposed RTS and first Q&A on EU Crowdfunding Regulation
ESMA’s draft RTS have as object (i) requirements and arrangements relating to the crowdfunding providers licencing process, (ii) standard formats and procedures for complaint’s handling and their reporting to NCAs, (iii) identification criteria conflict of interests’, (iv) standardisation of default rates’ calculation, and (v) retail investors’ knowledge entry test and simulation of the ability to bear losses. By means of its Q&A, ESMA has clarified that, for the provision of crowdfunding services, an SPV can only be set up if it is interposed between project owner and investors, in order to enable the latter to acquire an interest in one (illiquid or indivisible) underlying asset, which could not otherwise be offered to the investors themselves.
ESMA’s consultation on draft RTS under EU Crowdfunding Regulation of 26th February 2021.
ESMA’s 1st Q&A on EU Crowdfunding Regulation of 26th February 2021.
On the EU Digital Compass’s key points
According to the EU Commission, in order to achieve a full EU digital transformation by 2030, on the one hand, it is necessary to increase EU citizens’ digital literacy and, on the other hand, enhance the access to secure and performant sustainable digital infrastructures. In addition, digitalisation of public services and digital transformation of enterprises (SMEs, in particular) is to be thoroughly promoted. By means of a digital policy programme, to be adopted through the co-decision procedure with EU European Parliament and Council, EU Commission will identify a set of goals for each of the afore-said key points.
EU Commission’s communication (2021) 118 on EU Digital decade of 9th March 2021.
EBA’s opinion on NCAs’ actions aimed at enabling free access to payment accounts
In order to remove obstacles put in place by ASPSPs, which may prevent TPPs from accessing payment accounts, EBA has recently suggested NCAs to assess adoption and effectiveness level of the measures adopted by ASPSPs in that respect. Should assessment have a negative outcome, NCAs will have to take adequate supervisory actions by 30 April 2021, in light of the provisions implementing PSD2 into national legislation.
Compliance
Data protection
On the legitimacy of the personal data processing carried out by a credit reporting system
The processing of personal data carried out by a credit reporting system for the purpose of including such data into their filing systems is unlawful, in case there has been no prior investigation either on the purposes of the above processing or on the latter’s relevance with regard to the above mentioned purposes.
Anti-money laundering
New EBA’s guidelines on ML risk factors
EBA’ recently revised guidelines on ML factors have (i) identified the factors that firms should consider when assessing such risks associated with either a business relationship or an occasional transaction, (ii) strengthen the customer due diligence measures, and (iii) provided for sectoral guidelines addressed to crowdfunding platforms, PISPs and AISPs. Moreover, EBA’s guidelines aim to support ANCs’ supervision efforts in the assessment of the adequacy of firms’ policies and procedures for tackling ML risk.
EBA’s revised guidelines on money-laundering risk factors of 1st March 2021.
Capital Markets
EU Capital Markets Package entered into force
In order to facilitate the recapitalisation of EU companies affected by COVID-19 pandemic, both the MIFID II package and the Prospectus Regulation have been recently amended. As far as MIFID II is concerned, the new rules have (i) simplified investment information requirements to be provided to investors, (ii) introduced an exemption from product governance requirements in relation to bonds issue, and (iii) adapted the position limit regime for commodity derivatives. With regard to the Prospectus Regulation, it has been amended with the aim of introducing a new “EU recovery prospectus”, short, adequate and simplified, which will remain in force until 31 December 2022.
Corporate criminal law
On the subsidiarity principle as applicable to the relationship between equivalent and direct seizure
The subsidiarity principle, which governs the relationship between equivalent and direct seizure, requires that the former must be ordered only if the direct seizure is not possible. Therefore, the equivalent seizure’s order of assets belonging to a company’s director, who has been held liable on the ground of obstacle to supervisory functions and false corporate communications is lawful, even if not preceded by an assessment of the possibility of directly seizing the assets of the company, in whose interest and advantage the above mentioned offences have been committed.
Procedural law
On the consequences of the unlawful cancellation of a page on a social network
The cancellation of a page on a social network (in the case in question, Facebook), lacking objective grounds and not allowing to trace back the contents thereof, violates the duties of fairness and good faith (enshrined in the Italian Civil Code) and may bring about irreparable damages to the personal identity and relationships of the user, who may file a claim for damages.
Civil Court of Bologna, decision of 10th March 2021.
List of abbreviations
AISPs: Account Information Service Providers.
ASPSPs: Account Servicing Payment Service Providers.
BoI: Bank of Italy.
CONSOB: National Commission for Companies and the Stock Exchange.
EBA: European Banking Authority.
ECB: European Central Bank.
ESAs: European Supervisory Authorities.
ESG: Environmental, Social, Governance.
ESMA: European Securities and Markets Authority.
IBA: Italian Banking Association.
IBIPs: Insurance-based investment products.
Intermediaries Regulation: adopted by means of CONSOB’s Resolution no. 20307 of 15 February 2018, as amended.
MIFID II: Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments.
ML: money laundering.
NCAs: National Competent Authorities.
PSD2: Directive 2015/2366/EU of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market.
Prospectus Regulation: Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market.
SFDR: Sustainable Finance Disclosure Regulation (2019/2088 of 27 November 2019).
SMEs: small and medium sized enterprises.
SPV: Special Purpose Vehicle.
UCIs: Undertakings for Collective Investment in savings.
UCITs: Undertaking for Collective Investment in transferable securities.
PISPs: Payment Initiation Service Providers.
TTPs: Third Party Providers.