Table of contents
Top stories
New law on cybersecurity
Law Decree no. 105 of 21st September 2019, by means of which the “national cybernetic security perimeter” was established in order to ensure a high level of security for networks, information systems and IT services, has been recently converted into Law. In implementation of the latter, a decree of the President of the Council of Ministers will identify:
- the public administrations, national public and private bodies and operators on which the exercise of an essential function or service of the State depends, whether the latter’s malfunctioning, interruption or misuse could be prejudicial to the national security; and
- the procedures by means of which the above subjects must notify any accidents involving networks, information systems and IT services to the national Information Technology Security Intervention Group, which is established at the Department for the Security Information.
The Law under examination introduces:
- an articulated sanctionary system that provides for administrative and criminal sanctions in the event of false information and omitted provision of relevant information, as well as the inclusion of the afore-said offences among the predicate ones pursuant to Legislative Decree no. 231/01;
- the necessary linking measures with the special legislation on the Government’s golden power on broadband communication services based on 5G technology; and
- the extension of the afore-said golden power legislation’s scope of application in highly technological sectors.
New Regulation on the exercise of the sanctionary powers of the Italian Anti-bribery Authority
The Italian Anti-bribery Authority (the “Authority”)’s Regulation on the exercise of the Authority’s sanctionary powers, which replaces the equivalent regulation of the supervisory authority on public works, services and supply contracts (then replaced by the Authority), has recently entered into force, aimed at simplifying the sanctionary proceedings for infringement of anti-bribery rules. The new provisions apply to the proceedings that have not been initiated yet at the date of the Regulation’s entry into force.
Under consultation the new Regulation on sanctionary proceedings of the Italian Pension Funds Authority
On 9th December 2019, the public consultation on the proposed previsions of the Regulation on the sanctionary proceedings of the Italian Commission for the Supervision of Pension Funds (the “Commission”) will terminate. Once issued, the Regulation will apply to sanctionary proceedings for alleged violations of the law provisions governing supplementary pension scheme, as well as to those initiated by Commission for alleged violation of other provisions of law (such as those of Legislative Decree no. 58 of 24th February 1998 (Consolidated Financial Act), unless otherwise provided.
Corporate/Laws of contract
The safeguard clause in a loan agreement
The inclusion of a safeguard clause in a loan agreement, by virtue of which the lending bank undertakes to maintain the interest rate agreed upon among the parties within the limits of the so-called “threshold rate” for the entire duration of the agreement itself, transforms the prohibition of applying usurious interest rates into a specific obligation of the bank, thereby making the latter contractually liable vis-à-vis the borrower in the event of a breach of such clause.
Civil Court of Cassation, Sec. III, decision no. 28286 of 17th October 2019 (text available in Italian only).
Banking law
Recently updated the Bank of Italy’s Guide on supervisory activities
The eleventh update to the Bank of Italy (“BoI”)’s Guide to supervisory activities has been recently published, which regulates the supervisory review and prudential assessment process, as well as the controls on intermediaries in accordance with the principles of transparency and proportionality in the assessment of the conditions of sound and prudent management and, more generally, with the applicable laws and regulations.
Financial law
New Consob-BoI MoU
A memorandum of understanding has been recently entered into the Commissione Nazionale per la Società e la Borsa (“Consob”, the national financial markets authority) and the BoI on investment services and activities, as well as on collective asset management, aimed at enhancing the coordination of the respective supervisory activities with regard to:
- the procedures for exercising their regulatory powers;
- the exchange of information and the cooperation on inspections;
- the finding of irregularities and crisis management of qualified intermediaries; and
- the coordination of preparatory activities for the adoption of authorization resolutions measures.
Amendments to Regulations on related parties transactions, Issuers and Markets in implementation of SHRDII
A public consultation will end on 1st December 2019, which has as object proposed amendments to Regulation on related party transactions (Consob Regulation no. 17221 of 12 March 2010), Issuers’ Regulation (Consob Regulation no. 11971 of 14 May 1999) and Markets Regulation (Consob Regulation no. 20249/2017), in implementation of the Shareholder Rights Directive II (“SHRD II”). The main amendments proposed include:
- the obligation to abstain upon directors involved in transactions with related parties;
- transparency on directors’ remuneration; and
- new Consob’s powers on the transparency of active asset managers and investment advisers in relation to the exercise of the latter’s voting rights.
Just ended the public consultation on the financial advisors’ professional requirements
A public consultation carried out before the Treasury Department of the Ministry of Economy and Finance (“MEF“) has recently ended, which had as object a scheme of a ministerial decree setting forth the requirements of professionality, respectability, independence and capital adequacy necessary for independent financial advisors, to carry out the investment advisory service, consulting firms and financial advisors qualified to door-to-door selling.
Limits to the so-called “selective nullity” legal action concerning an investment contract
The Joint Sections of the Supreme Court have recently resolved a jurisprudential conflict concerning the effects of an action for nullity proposed by a client with reference to specific purchase orders of financial instruments (the so-called “selective nullity” action). In particular, the principle has been established whereby the nullity for lack of written form of the framework agreement having as object an investment service can be claimed only by the client, with the consequence that the procedural and substantive effects of the action operate only to his/her advantage. However, when the client acts in order to obtain, following the declaration of selective nullity, the restitution of the amount paid in execution of specific purchase orders, the interested intermediary can plea the breach of the principle of good faith within the limit of the advantage obtained by the client in execution of the orders that were not object excluded the lawsuit, thereby blocking the restitutory effects of the selective nullity action.
Unsuitability of the client’s authorisation to carry out an unsuitable the financial transaction
The client’s statement contained in a standard form, which lacks any evidence that such client had actually supplied adequate information (as required by the law), is not sufficient in order to demonstrate the client’s intention to carry out the financial transaction at issue despite the bank’s warning of the unsuitability of such transaction nor the bank’s compliance with its obligation to provide suitable information on the risks associated with any proposed transaction in financial instruments.
Civil Court of Cassation, Sec. I, decision no. 28175 of 31st October 2019.
Financial services/FinTech
EBA report on cross-border provision of banking and payment services in digital form
In a recent report, the European Banking Authority (“EBA”) has analysed the potential issues that may prevent or obstacle the cross-border provision of banking and payment services by means of digital solutions within the European Union. In particular, EBA has pointed out, inter alia, (i) the absence of a clear definition of “cross-border provision of digital services”, and (ii) a lack of harmonization among the EU Member States’ law provisions regulating authorisation and licensing, consumer protection and anti-money laundering areas.
EBA, “Report on potential impediments to the cross-border provision of banking and payment services” of 29th October 2019.
Compliance
Legislative Decree no. 231/2001
Configurability of entities’ liability also for tax offences
A new article (Article 25-quinquiesdecies) has been recently added to Legislative Decree no. 231/01, by means of which the crime of fraudulent declaration through the use of false invoices or other documents for non-existent transaction is now included in the list of predicate offences relevant under the same Decree. In particular, the afore-said offence is committed when, in order to avoid to pay the due income or value added tax, fictitious passive elements are inserted in the tax returns through the use of false invoices or other documents for non-existent transactions.
Data protection
Spamming does not per se constitute an offence
The transmission of a limited number of emails in a strict period of time, in the absence of a prior warning raised to the sender, does not amount to unlawful processing of personal data, since to that end it is necessary to cause an actual damage to the addressee of the above emails, which cannot be represented by the hassle of having to delete each time unwanted emails from his/her systems.
Anti-money laundering
“Suptech” application for AML
Following a research of the Financial Stability Institute (“FSI”) and the Bank for International Settlements (“BIS”), in collaboration with the Italian Financial Information Unit (“UIF“), an AML paper has been recently published, which has as object the use by national competent authorities in the financial service sector, operating in Italy, Australia, Mexico, the Netherlands, South Africa, Canada, Finland, Russia and Singapore, of data collection and advanced data analytics tools enabled by innovative technologies (the so-called “Suptech”). According to this study, the benefits arising from the use of such innovative technologies can be particularly useful in jurisdictions with low AML standards, for they could take advantage of the immediate availability of innovative instruments already used in other (more advanced) Countries.
Capital Markets
Amendments to Crowdfunding Regulation
Consob Regulation no. 18592 of 26 June 2013 on venture capital raising through online portals (the “Crowdfunding Regulation”) has been recently amended by means of Consob Resolution no. 21110 of 10 October 2019, which envisaged, inter alia, that:
- the underwriting of bonds and debt securities issued by Small and Medium Entities (“SMEs”), up to a maximum amount of Euro 8 million, is reserved solely to:
- professional investors;
- banking foundations;
- start-up incubators;
- investors in support of SMEs;
- investors who hold a financial portfolio of more than Euros 250,000;
- investors who commit themselves to invest at least Euros 100,000 and declare in writing (in a document separate from the investment contract) that they are aware of the risks associated with such investment; and
- to retail investors who are the recipients of a portfolio management or an investment advice service;
- online platforms’ management companies can make use of web-boards where to publish expressions of interest for the sale and purchase of financial instruments object of offers successfully concluded within a crowdfunding campaign carried out on their portal.
Procedural law
Court expert cannot remedy to a lack of evidence within the proceedings
The evidence of the relevant facts deducted in a proceedings must be articulated and provided by the interested parties. Therefore, a Court expert’s report cannot be ordered only for the purpose of filling in such gaps. As a result, the Court’s expert cannot use, for drafting his/her report, bank statements and other documents that have not been previously provided by the parties to the proceedings, under the penalty of worthlessness of the findings based on the afore-said documents.