Mi.Ca Regulation: agreement between the EU Parliament and Council
On 30 June, the EU Parliament and Council reached a provisional agreement on the proposed Mi.Ca. regulation. Such proposal aims to:
- protect investors/consumers from the risks associated with investing in crypto-assets, by providing strict requirements for market access by operators, who are liable in case of losses incurred by investors;
- promote the eco-sustainability of the crypto-asset market by requiring operators to declare information on their environmental and climate footprint according to the RTS developed by ESMA.
Crypto-asset service providers will need an authorisation, issued by national authorities within a timeframe of three months, in order to operate within the EU.
NFTs, i. e. digital assets representing real objects like art, music and videos, are excluded from the scope og Mi.Ca Regulation. The European Commission will be tasked to prepare a comprehensive assessment and, if deemed necessary, a specific, proportionate and horizontal legislative proposal to create a regime for NFTs and address the emerging risks of such new market.
Council of the EU, Press Release of 30 June 2022 No. 551/22
RRF2 Decree: coordinated text published in the Official Gazette
The so-called “RRF2” has entered into force on 30 June 2022.
Among the main novelties, it is worth mentioning:
- mandatory electronic invoicing from 1 July 2022 for professionals VAT holders with flat-rate schemes and revenues or compensation over 25,000 euros, as well as fines for not accepting electronic payments;
- six-month extension of the so-called “110% Super and sisme-bonus” incentive; and
- obligation for credit, debit or prepaid cards issuers to report digitally to the RA, the fees charged, the identifiers of the payment instruments and the amount of the daily transitions made.
In addition, the Minister of Sustainable Infrastructures and Mobility has established the CISIM for the purpose of guaranteeing the implementation of the Ministry-owned interventions financed with the resources of the RRF and NPC. The CISIM promotes and carries out study, research and development activities in the field of sustainability of infrastructures and mobility, technological, organisational and material innovation, while ensuring training activities within the Ministry and in other public administrations, including local ones.
Law Decree 30 April 2022 no. 36, on further urgent measures for the implementation of the National Recovery and Resilience Facility converted into Law 29 June 2022 no. 79 (published in Official Gazette no. 150 of 29 June 2022) and Ministerial Decree of 26 May 2022, implementing Law Decree no. 121 of 10 September 2021 (published in the Official Gazette on 10 September 2021, no. 217)
Reform of the judicial system and the SCJ
A law on the reform of the judicial system was recently published, which contains provisions on organisational and disciplinary matters, eligibility and reinstatement of judges, as well as on the establishment and functioning of the SCJ.
Among the most relevant novelties, it is worth mentioning:
- revision of the criteria for assigning managerial positions, reform of the procedures for approving the organisational tables of judicial offices, as well as of the procedures for assessing the professionalism of judges also through the establishment of assessment file;
- the system for electing judges, assigning government positions and the redeployment at the end of each term of office; and
- the change from judicial to prosecutorial functions, which may be made only once in the course of a career within ten years from the first assignment of functions.
Law no. 71 of 17 June 2022 (published in the Official Gazette on 20 June 2022 no. 142)
Upcoming entry into force of the Code of Entrepreneurial Crisis and Insolvency
The Council of State has given a favourable opinion to the Legislative Decree amending the Code of Entrepreneurial Crisis and Insolvency, which is going to enter into force on 15 July 2022.
This legislative novelty falls within the scope of the objectives set out in the RRF in order to complete the digitalisation of insolvency proceedings through the creation of an online platform and the specialization of the competent bodies.
Council of State’s opinion of 13 May 2022 no. 832
Corporate/Laws of contract
Pledge on quotas of a limited liability company: the sum guaranteed is the basis for calculating the registration tax
The Supreme Court has recently laid down the principle whereby, in case of a pledge of quotas of a limited liability company, the calculation basis, for registration tax purposes is the guaranteed sum (and not the value of the pledged quotas).
The Court has thus denied that the notion of instrument of credit provided by Article 43 of Presidential Decree no. 131/1986 includes the above quotas as well as those of other or partnerships’, for the latter do not have the characteristics of literalness, autonomy and incorporation typical of the instruments of credit. Consequently, in case of a pledge over such assets, the tax must be paid on the amount of the sum secured thereby.
Court of Cassation, Sec. V, orders nos. 9377 and 9378 of 22 March 2022
BoI complies with EBA’s guidelines on crisis management
BoI has recently announced that it intends to comply with EBA’s guidelines addressed to institutions and resolution authorities and designed to improve resolution options pursuant to BRRD Directive (as recently amended). The afore-said guidelines will enter into force on 1 January 2024, applying to entities supervised by BoI, including in particular, banks, investment firms and entities belonging to a group supervised on a consolidated basis.
Bank of Italy’s note dated 27 May 2022 no. 27
BoI’s sanctions for violation of remuneration rules
The Court of Cassation has ruled in favour of BoI’s sanctions imposed on a bank’s directors for violating regulations on compensation and incentive policies and practices.
In particular, in the crosshairs of the supervisory authority was the very high compensation of the general manager, paid at the end of his term of office due to consensual resolution, despite the negative results of his management. This compensation, moreover, had not been parameterized to performance and risks taken, as required by industry regulations.
According to the Supreme Court, the detailed rules issued by the BoI pursuant to Article 53 of CBA are supplementary to national collective agreements. However, in the termination agreement in question, remuneration had been provided for in addition to that covered by the contract, thereby resulting in a violation of the second-level regulations issued by the BoI and thus making the sanctions imposed legitimate.
Court of Cassation, Sec. II, order of 31 May 2022 no. 17567
On the bank’s disclosure obligations vis-à-vis investors
Pursuant to Article 23 of the CFA, banks or financial intermediaries must prove to have complied with the information obligations regarding the proposed investment’s key characteristics, including its level of riskness.
This obligation is deemed to have been fulfilled if information about the investor is collected upon signing by the latter of the framework agreement and information concerning the financial instruments offered, including their riskness and unsuitability of the transaction, if any, is provided to the investor.
The Court of Cassation made it clear that the aforementioned disclosure requirements are aimed at encouraging informed choices on the part of the investor. Therefore, even if the investor in question has experience of high-risk financial transactions, the intermediary is not per se exempt from the disclosure obligations under the CFA concerning nature, yield and other key characteristics of the financial instrument in question.
Court of Cassation, Sec. I Civil, Order of 27 May 2022 no. 17271
The European green bonds Regulation
Green bonds are ordinary bonds whose issuance is related to environmental sustainability projects (such as energy efficiency, pollution prevention and control, sustainable land use).
The European Parliament has recently issued some changes to the green bonds (the EUGB Regulation), as follows:
- transparency requirements have been introduced for all green bonds, including alignment with taxonomy regulations;
- to prevent highly polluting companies from using EuGB label to pretend to adopt sustainable policies, the proposal requires verified transition plans. All issuers from countries on the EU’s gray or black lists of tax havens are prohibited from issuing EuGBs; and
- monitoring activities entrusted to external auditors have been introduced so as to ensure that the EUGB Regulation be complied with and the projects financed be in line with the requirements of the taxonomy. Strict transparency requirements have also been envisaged in order to ensure that, when a green bond issuer intends to allocate proceeds to nuclear energy or fossil gas activities, a statement must appear prominently on the front page of the EUGB Factsheet.
Proposal for a Regulation of the European Parliament and of the Council on European Green Bonds of 6 July 2021, No 2021/0191 (COD) and Report of the Committee on Economic and Monetary Affairs of 20 May 2022
ESMA’s supervision over sustainable investment funds
ESMA has recently issued some guidelines to ensure the supervision of investment funds with sustainability features in order to contrast “greenwashing”. The provisions in question are characterised by a risk-based approach, for intensity and frequency of the supervision related to the sustainability of investment funds is to be determined by the risk assessment over such funds.
Supervisory briefing sustainability risks and disclosures in the area of investment management of 31 May 2022
Proposal for a Directive on consumer credit
A proposal for a Directive on a consumer credit has been recently issued, which repeals and replaces Directive 2008/48/EC on consumer credit agreements.
The proposal takes into account the increased digitalisation that informs consumer credit, whereby new players offer credit products and services to consumers through faster and simplified procedures. Consumer protection is the ultimate goal of the proposed Directive, which promotes responsible and transparent practices by all stakeholders, raising the level of financial education and advice on debt, as well as regulating the assessment of consumers’ ability to repay or not repay credit.
In submitting its opinion to the proposed Directive, the Council of the EU has proposed to:
- exclude from its scope direct crowdfunding, deferred debit payments and debit cards, rental or leasing contracts without obligation or option to purchase the underlying assets;
- standardise the pre-contractual information forms provided to consumers to allow them to properly compare the various offers in the market;
- define a maximum term in which the right of withdrawal can be exercised; and
- enivisage an obligation to protect consumers from excessively high interest rates.
Proposal for a Directive of the Parliament and of the Council on consumer credit of 30 June 2021 no. 2021/0171
EU Regulation on DLT
The DLT Regulation has been recently published, which introduces a pilot regime for market infrastructures based on distributed ledger technologies.
The DLT Regulation will be effective from 23 March 2023 and is part of the Digital finance package adopted on 24 September 2020 by the European Commission, which contains significant digital resilience actions aimed at making financial services more digitalised, stimulating innovation and competition in the EU.
The Regulation is addressed to operators of trading platforms for DLT financial instruments, (i.e., “financial instruments issued, recorded, transferred and stored using distributed ledger technology” interchanged on platforms based on blockchain technology).
Such pilot regime introduced by the Regulation is aimed at increasing efficiency in the trading and post-trading procedures without weakening the guarantees applicable to traditional market infrastructures, while respecting the principles of proportionality, technological neutrality and level playing field, with the aim to ensure data protection and enable new market entrants.
Regulation (EU) 2022/858 of the European Parliament and of the Council of 30 May 2022 (published in the Official Journal of the EU on 2 June 2022)
Consob’s report on sustainable investment and crypto-assets
Consob has just published its first report on sustainable investment and crypto-assets, dwelling on:
- the main equity benchmarks, highlighting the fluctuating performance registered in the last two years, with a substantial recovery from the pre-pandemic decline in early 2022;
- ESG scores of listed companies, which has grown significantly in the recent years;
- sustainable financial instruments, with bonds and sustainable funds ranking 50% of total issuance Europe-wide and 80% globally;
- decentralised finance applications, whose secured amount has grown from $16.5 billion in 2020 to $56 billion in May 2022;
- the volatility risk of cryptocurrencies, which is much greater than non-digital assets;
- the cyber-security risk, which remains a major criticism; and
- the growing interest in crypto assets shown also by institutional investors.
Consob’s report on “emerging trends in sustainable investing and crypto asset markets” of 28 June 2022
Legislative Decree no. 231/2001
Suspension of judicial proceedings due to probation period is applicable also to a legal entity
In the wake of previous decisions of other Courts, the Criminal Court of Bari has recently recognised the applicability to a legal entity of the suspension of a judicial proceedings due to probation, provided for in Article 168-bis of the Criminal Code, which extinguishes the crime after a period of rehabilitation of the accused. This is a minority orientation, which analogically applies the measure provided for individuals to a legal entity, since the underlying rationale is to re-educate the accused through reintegration into civil society and this should be applicable also to a company, for it may regain confidence in the context of civil society.
Criminal Court of Bari, sec. I, order of 22 June 2022
Credit institutions distributing insurance products are data controllers under privacy law
DPA clarified the role of insurance companies and banks in the processing of personal data carried out in the context of the distribution of insurance policies. Specifically, while the insurance company acts as data processor, the distributing bank plays the role of data controller. In fact, pursuant to Article 58 of IVASS Regulation, the discretion of the distributor in relation to purposes and means of the processing is limited to collecting information from the insured in order to assess his/her profile and needs, while the insurance company must provide the intermediary with appropriate instructions in respect of the afore-said pre-contractual phase.
DPA’s opinion of 18 May 2022
ESAs’ report on revocation of bank authorisation for breach of AML/CFT law provisions
In a recent report on the revocation of bank authorisation for serious AML/CFT violations, ESAs:
- call for the inclusion of adequacy of arrangements and processes to ensure AML/CFT compliance among the licence authorization requirements;
- underline the importance of adequate integration of AML/CFT issues in the proposed MiCA Regulation;
- clarify that revocation of licenses should be considered as a measure of last resort, subject to a discretionary and proportionality assessment;
- establish uniform criteria for the notion of a “serious violation” of AML/CFT rules, emphasizing that it is subject to a case-by-case assessment by competent NCA(s); and
- provide a preliminary analysis of the interaction between serious violations of AML/CFT rules with the crisis management and resolution regime, as well as for an initial mapping of critical operational and regulatory issues.
Joint ESAs’ Report on the withdrawal of authorisation for serious breaches of AML/CFT rules of 31 May 2022 no. 23
Memorandum of Understanding between EPPO and FIU
EPPO and FIU have recently entered into a MOU to facilitate cooperation and support in the analysis of cases falling under the jurisdiction of the Public Prosecutor’s Office, regulating the exchange of information of mutual interest and identifying thematic areas for the joint analysis of facts and information, as well as mutual training initiatives. To ensure the utmost confidentiality, it is envisaged that information flows through the FIU’s IT system. This collaboration is preparatory to effectively tackling the increasingly sophisticated cyberattack threats to the detriment of EU’s financial system.
Memorandum of Understanding between the EPPO and FIU of 8 June 2022
Corporate criminal law
EU Regulation on countering the dissemination of online terrorist contents
Effective 7 June 2022, the EU Regulation to counter the spread of terrorist content online entered into force, which provides for a legal framework to ensure that hosting service providers remove terrorist content online within one hour of its publication.
Safeguards for freedom of expression and the right to information are also provided, such as the exemption of materials disseminated for educational, journalistic, artistic or research purposes EU. Member States can autonomously decide the amount of penalties, in proportion to the nature of the infringement.
The new rules also establish transparency obligations for online platforms and require national authorities to report annually on the amount of terrorist contents removed, outcomes of complaints and appeals, as well as the number and type of sanctions imposed on online platforms.
Regulation 2021/784/EU of the European Parliament and of the Council of 29 April 2021 (published in the Official Journal of the EU on 17 May 2021)
First Constitutional Court’s decision on ne bis in idem principle and double judgement system
The Constitutional Court has recently ruled on the relationship between Article 649 of the Code of Criminal Procedure, which provides for the prohibition of double trial (the so-called “ne bis in idem” principle), and administrative proceedings.
The Court of Verona, considering that “Article 649 of the Code of Criminal Procedure prohibits subjecting a person already acquitted or convicted in another criminal proceeding to a second trial, but does not exclude that the accused may be judged for an act for which he has already been administratively sanctioned”, had asked the Constitutional Court to verify whether, in the latter case, the subjecting to a trial violated the principle of ne bis in idem.
The Constitutional Court upheld the appeal, declaring the constitutional illegitimacy of Article 649 of the Code of Criminal Procedure for it does not provide that “the judge pronounces the acquittal or the non-suit against a defendant for a copyright crime who, in relation to the same fact, has already been subjected to administrative proceedings of a punitive nature, now definitively concluded”.
According to the Constitutional Court, a criminal proceedings cannot be started or continued against a person who has already been administratively sanctioned for the same of infringement copyright law.
Constitutional Court, decision of 16 June 2022, no. 149.
Regulation on the platform for the service of acts of the P.A.
Effective 21 June 2022 the platform for notifying P.A. documents started its operations. Such platform is managed by PagoPA, and is part of digitalisation process of public services, with the aim of simplifying and making certain the notification of administrative acts having legal value for citizens and businesses, thereby saving time and costs.
In fact, notifications will be available both in telematic and paper format by sending registered mail with return receipt if citizen have not yet elected or do not have a digital domicile.
Ministerial Decree of 8 February 2022 no. 58 (published in the Official Gazette on 6 June 2022 no. 130)
List of abbreviations
BoI: Bank of Italy.
BRRD: Directive 2014/59/EU of the European Parliament and of the Council of 15 may 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms.
BRRD II: Directive (EU) 2019/879 of the European Parliament and of the Council of 20 May 2019 amending Directive 2014/59/EU as regards the loss-absorbing and recapitalisation capacity of credit institutions and investment firms and Directive 98/26/EC.
CBA: Consolidated Banking Act.
CFA: Consolidated Law on Finance.
CFT: Combating the financing of terrorism.
CISIM: Centre for innovation and sustainability in infrastructure and mobility.
CONSOB: The national financial markets Authority.
Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency).
Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC.
DLT: Distributed Ledger Technology.
DPA: Data Protection Authority.
EBA: European Banking Authority.
ECB: European Central Bank.
EPPO: European Public Prosecutor’s Office.
ESAs: European Supervisory Authorities.
ESG: Environmental, Social and Governance.
ESMA: European and Securities Market Authority.
EU: European Union.
EUGB: European Green Bond.
FIU: Financial Intelligence Unit.
NCAs: National competent authorities.
NFT: Non Fungible Token.
NPC: National plan for complementary investments.
P.A: Public administration.
RA: Revenue agency.
RRF: Law Decree of 6 November 2021 no. 152, entitled Urgent provisions for the implementation of the National Resilience and Recovery Facility and for the prevention of mafia infiltration, converted with amendments into Law of 29 December 2021 no. 233, published in the Official Gazette on 31 December 2021 no. 310.
SCJ: Superior council of the Judiciary.