Table of contents
Top stories
Delegated Law for the reform of the criminal proceedings
The Law delegating the Government to reform the criminal proceedings will enter into force on 19 October 2021, with the aim to speed up the related duration.
Key-areas of intervention include:
- revision of the regime on investigations and the preliminary hearing;
- reform of alternative proceedings;
- modification of trial’s regime;
- revision and extension of the regulations on the requirements for prosecution;
- extension of the scope of applicability of the suspension of criminal proceedings with probation of the accused;
- revision of the regime of sanctions in lieu of short custodial penalties;
- revision of the rules on telematic criminal proceedings, affirming the principle of the mandatory use of digital methods both for filing acts and documents, and making communications and notifications;
- modification of the regime of notifications to the accused; and
- reform of the regime of the trial in absentia.
The Government has been also assigned the task of introducing an integrated regime of “restorative justice”, in implementation of Directive 2012/29/EU.
Some provisions are immediately applicable, which imply:
- the prescription of a crime upon the issuance of a the judgment of first instance, whether of acquittal or conviction;
- inadmissibility of the criminal action due to the overcoming of the maximum duration of the appeal proceedings, two years for the appeal and one year for the proceedings before the Court of Cassation, respectively.
Delegated Law of 27 September 2021, no. 134, in the Official Gazette n. 237 of 4 October 2021
Just published the new measures on ESG factors
In implementation of the European Green Deal, the EU Commission has just adopted a series of regulations aimed at including the assessment of sustainability factors within existing regulations, which will enter into application on 2 August 2022, whilst the Delegated Directive (EU) 2021/1269 will apply, effective from 22 November 2022.
Specifically, the Regulations provide for:
- the obligation for investment firms and AIFMs to take into account sustainability risks both with reference to general organizational requirements and when providing advice, assessing clients’ sustainability preferences;
- the obligation for insurance and reinsurance undertakings, within the risk management areas of the Solvency II Directive, to take sustainability risks into account;
- a requirement for insurance companies and distributors of insurance products to take sustainability factors into account when identifying the product’s target market, without the need to identify customer groups whose needs are not compatible with the insurance product in question in order to enable insurance products with sustainability factors to be made available to all customers.
The Delegated Directives provide for:
- the need for Member States to require investment firms to identify at a granular level the potential target market for each individual financial instrument and specify the type of client compatible with that instrument, also taking into account any client objectives that are related to sustainability;
- the need for distributors of financial instruments to be made adequately aware of the sustainability factors of the financial instrument in order to be able to adequately assess sustainability objectives with respect to the individual client;
- the obligation for distributors of financial instruments to have adequate product governance mechanisms in place in order to ensure compatibility also with sustainability objectives of the reference market;
- the obligation for Member States to require management companies to take sustainability factors into account when complying with procedural and organizational requirements;
- the obligation for Member States to ensure that management companies have the necessary resources and expertise to enable the effective integration of sustainability risks.
Official Journal of the European Union, L 277, 2 August 2021
Launch of the Italian FinTech Sandbox
In implementation of Article 36, paragraph 2-bis et seq., of the Growth Decree, the Ministry of Economy and Finance has recently issued a decree (entered into force on 17 July 2021) which governs the composition and competences of the FinTech Committee, that aims at coordinating the testing phase envisaged under the new regulatory Sandbox, also introduced by the same decree. Thanks to this tool, FinTech companies wishing to launch on the market an innovative product/service in the banking, financial or insurance sectors will have the opportunity to testing, for a period of 18 months, the product/service at issue, in a protected environment enjoying a dialogue with the competent supervisory authorities. The latter, upon applicant’s request, may make exceptions to their own guidelines/provisions/regulations, allowing FinTechs, which are able to bring added value to the reference sector(s), an easier and safer entry into such markets. At the same time, the Sandbox represents an opportunity for supervisory authorities to adapt their regulations to the unstoppable process of digital transformation in the afore-said sectors.
On 30 September, the Bank of Italy, CONSOB and IVASS announced the launch of the first time-window submitting an admission application, which will last from 15 November 2021 to 15 January 2022.
Corporate/Laws of contract
EU Commission launches consultation on Public-Private Partnerships (“PPPs”)
On 27 July 2021, the Commission launched a consultation (ending 2 November 2021) on public-private partnership (PPP) legislation to prevent money laundering and terrorist financing.
The purpose of the consultation is to:
- obtain information regarding the types of “PPPs”, the participating entities, the information exchanged and the measures taken to ensure the protection of fundamental rights;
- gather input regarding the mechanisms applied to measure the effectiveness and success of these partnerships and improve the Commission’s understanding of the effects, benefits and added value of the various “PPPs” in the fight against money laundering;
- provide the Commission with sufficient information for the development of guidelines and publication of best practices.
EU Commission consultation paper
Liability for fault of the parent company’s managing director
Contrary to the prevailing doctrine, the Court of Cassation has stated that “neither the management and coordination powers nor the legal independence of the management bodies of a subsidiary are ontologically incompatible with the parent company’s managing director authority over risk areas, if any, related to such company’s activities”, thus highlighting the possible attribution of a liability for negligence also to the managing director of the parent company for facts occurred to a subsidiary, especially when, as in the case at issue, the parent company is vested with the authority to act as a holding company with management powers.
Court of Cassation, judgement no. 32899 of 6 September 2021
Banking Law
EBA’s Report on the use of digital platforms in the EU banking and payments sector
EBA published, on 26 September 2021, a Report on the platformisation of the EU banking and payments sector. EBA identifies a rapid growth in the use of digital platforms to ‘bridge’ customers and financial institutions, a trend expected to accelerate in line with the progressive digitisation of the EU financial sector. In light of the latter, new forms of financial, operational, and reputational interdependencies are emerging, and EBA identifies steps to strengthen its supervisory capacity to monitor market developments.
EBA’s Report on the use of digital plafroms in the EU banking and payments sector
EBA’s Final Guidelines on the exceed of large exposure limits
On 15 September 2021, EBA published its final guidelines on the criteria for assessing (exceptional) cases in which credit institutions exceed the large exposure limits. The purpose thereof is to provide guiding principles based on pre-determined criteria to assist NCAs in deciding whether exceptional circumstances leading to a breach of the large exposure limits justify granting a period of time to come within the above limits.
In particular, the guidelines dictate the following criteria upon which the NCAs may set a time limit for compliance:
- the reporting of violations of the institution;
- the timeliness of notification of the violation or corrective action to return to normal;
- the reasons for, complexity of, and scope of the violation;
- the overall financial condition of the institution;
- the overall concentration of risk in the banking book;
- the type of counterparty and its creditworthiness; and
- the steps already taken to address the violation.
EBA’s Final Guidelines on the exceed of large sxposure limits (EBA/GL/2021/09)
Revised Guidelines on stress tests of Deposit Guarantee Schemes
With its Final Report of 15 September 2021, EBA amended its guidelines on stress test of DGS under Directive 2014/49/EU, which had already been issued in 2016. The revised guidelines further strengthen the current DGS stress-testing framework by requiring the DGSs to test their resilience in a greater number of situations and aim to provide a more comprehensive, clear and harmonised template for recording and submitting the results of the stress tests to EBA. The deadline for the DGSs to submit their next reporting template is set for 16 June 2024.
Revised Guidelines on stress tests of Deposit Guarantee Schemes under Directive 2014/49/EU
Loan indexed to the Swiss franc: clauses drafted in an unclear and comprehensible manner may be affected by nullity
The Court of Cassation has reiterated its orientation regarding the vexatiousness of clauses lacking the requirement of clarity and comprehensibility.
In case in question, the Supreme Court quashed the decision of the Court of Appeal of Milan, which had rejected the appellants’ request regarding the invalidity of the double conversion clause in the event of early repayment of a loan granted in Euros with interest indexed to the Swiss franc.
The Court found the clause to be invalid pursuant to Articles 116 and 117 of the Consolidated Banking Act, as well as pursuant to Art. 33 et seq. of the Consumer Code, noting that, with regard to contracts between professionals and consumers, “clauses drafted in an unclear and comprehensible manner may be qualified as vexatious or unfair and therefore affected by nullity, if they determine a significant imbalance in the rights and obligations arising from the contract at the expense of the consumer and this also where they concern the very determination of the object of the contract or the adequacy of the consideration for the goods and services, if these elements are not identified in a clear and comprehensible manner“.
Civil Court of Cassation, section I, judgement of 31 Agust 2021, no. 23655 – in Italian only
ECB on the delegation of decisions on the significance of supervised entities
ECB has recently made amendments to the previous Decision (EU) 2017/934, given the identified need to clarify the procedure for delegating decision-making powers in respect of amendments to decisions on significance where heads of work units have concerns with regard to the interconnectedness of such a decision with one or more other decisions requiring supervisory approval. In particular, it is laid down that an amendment to a decision on significance shall not be adopted by means of a delegated decision if the complexity of the assessment or sensitivity of the matter requires that it is adopted under the non-objection procedure. In such case, heads of work units shall submit an amendment to a decision on significance to the ECB’s Supervisory Board and the Governing Council for adoption under the non-objection procedure.
Proposal for the revision of the EC Directive on consumer credit
On 30 June 2021, the European Commission proposed the revision of the existing legislation on consumer credit in order to reshape, resize and harmonize the national measures implementing Directive 2008/48/EC.
The purpose of the Directive is to establish a common framework for the harmonization of certain aspects of the laws, regulations and administrative provisions of the Member States regarding consumer credit, in the form of certain consumer credit agreements and crowdfunding credit services to consumers.
The main aspects of the proposal relate to:
- the information to be provided prior to the conclusion of the agreement, presented in a clear and appropriate manner, also with respect to the digital progress of services.
- the revision of the rules relating to the assessment of creditworthiness in order to avoid the problem of over-indebtedness.
- indications regarding the form and content of contracts, also in order to avoid the non-compliance with protections guaranteed through the use of particular forms of contract, as well as with the rules of conduct and requirements for staff.
Proposal for the revision of the EC Directive
New ombudsman in banking and finance activated in Parliament
At the end of September 2021, the protocol signed by the Parliamentary Commission for the supervision of banks with the GDF, for the creation of an IT platform to which businesses and families will be able to send reports on critical points in their relations with banks and financial intermediaries, became fully operative.
The above-mentioned subjects will be able to address the body in order to favour, in a perspective of loyal collaboration, the prevention or the rapid definition and conciliation of the dispute, contribute to the correct application of the regulations in force on the subject or to the overcoming of criticalities, defaults and operational difficulties. Reports cannot be anonymous, and will be assessed within a non-mandatory period of 30 days.
GDF will carry out the formal investigation of the relevant reports and may be authorized by the Commission to communicate to its Headquarter for the protection of economy and finance, facts or acts of potential importance for institutional activities.
Abusive granting of credit to a company in debt
The Court of Cassation ruled that the granting of credit by a bank to a company in a state of economic and financial difficulty, and in the absence of concrete possibilities of overcoming the crisis, constitutes an unlawful act by the lender who has wilfully or negligently breached its primary duties. The latter will be obliged to pay damages if it can be shown that the worsening of the instability is due to the continuation of the business activity.
In such cases, the insolvency administrator is entitled to act against the lender for wrongful grant of credit.
On the contrary, the above does not apply whether the lending bank, although not involved in a formal procedure for the company’s recovery, has taken a reasonable risk aimed at reorganising such company, which, according to an ex-ante assessment, is likely to overcome the crisis or at least remain profitable on the market.
Court of Cassation, judgement n. 24725/21 of 14 September 2021
Financial law
CONSOB complies with the Guidelines issued by ESMA in relation to the enforcement of financial information.
In a notice dated 23 September 2021, CONSOB announced that it is complying with ESMA’s Guidelines in relation to the activity aimed at enforcing financial information.
Such guidelines are principles-based and:
- define enforcement of financial information and its scope under the Transparency Directive;
- set out what characteristics the enforcers should possess;
- describe selection techniques that should be followed and other aspects of enforcement methodology;
- describe the types of enforcement actions that should be used by enforcers; and
- explain how enforcement activities are coordinated within ESMA.
CONSOB’s notice of 23 September 2021 – in Italian only
Asset management: mala gestio for the deviation from the benchmark?
In judging a case of alleged mala gestio for deviation from the benchmark, the Court of Cassation has held that, in the event that there has been no alteration of the agreed composition of the assets portfolio, in order for mala gestio by the manager on the ground of alleged negative management results to be triggered, the mere deviation from the chosen benchmark is not sufficient (otherwise a hypothesis of substantially objective responsibility would arise), since the reasons for said deviation must be assessed in order to identify any concrete profiles of negligence and/or imprudence and/or inexperience on the manager’s side, which, moreover, may also be revealed based on the entity of the deviation itself.
Civil Court of Cassation, section I, order of 20 September 2021, n. 25343 – in Italian only
CONSOB’s parameters for listed issuers’ financial information to be provided to the market for year 2021
In implementation of art. 89-quater of the Issuers’ Regulations, CONSOB has recently issued the risk parameters for the correctness and completeness of the financial information to be disclosed to the market by the listed issuers, aimed at identifying the listed issuers whose documents will be subject to control. The new parameters also take into account the possible impacts of COVID-19 on the above financial information.
CONSOB’s Resolution no. 21990 of 8 September 2021 – in Italian only
On the validity of the interest rate swap contract
Called to rule upon the validity of an interest rate swap contract with an up-front payment, the Court of Cassation has recently pointed out that such a contract is not per se null and void due to defect or unlawfulness of the cause, but rather requires a case-by-case assessment of the concrete structure of the negotiated relations. Therefore, the contract must be considered valid if the aleatory cause of the swap contract and that of the underlying financing relationship, although connected, remain autonomous and distinct, without entailing any alteration of the risk borne by the commercial operator.
Civil Court of Cassation, section I, judgement of 6 September 2021, no. 24014 – in Italian only
The remodulation of the investment does not cure the defect deriving from the absence of the framework contract
The case of an interest rate swap contract, considered invalid by the petitioner in the absence of a valid framework contract, was brought to the attention of the Supreme Court. The defendant and the judges of first instance, as well as of appeal, considered the petitioner’s requests to be ungrounded, given that, following the subsequent merger of the original intermediary, the contract would have been reshaped on the basis of a new framework contract signed with the merging intermediary. The Court of Cassation upheld the appeal, maintaining that, in the absence of a framework agreement, the reshaping of the swap contract entails that the requirement of the written form for the framework agreement pursuant to Article 23 of the Consolidated Financial Act only applies to the acquisition, keeping the invalidity of the former transaction due to the lack of the above requirement.
Civil Court of Cassation, section I, judgement of 6 September 2021, no. 24015 – in Italian only
Marketing of UCITS and AIFs in Italy: published the information required by Regulation (EU) 2019/1156
On 2 August 2021, CONSOB published the information on the marketing of UCITS and AIFs in Italy.
Specifically, for EU UCITS, the notification procedure by the UCITS’ home country authority must be completed. In case of national and EU UCITS marketed in Italy to retail investors, the marketing is preceded by the filing of the offering circular through the DEPROF System. Marketing documentation relating to the public offering of UCITS in Italy must also be priorly sent to CONSOB (see Articles 101 of the Consolidated Financial Act and 34-octies of the Issuers’ Regulation). The marketing in Italy of AIFs is instead preceded by the notification procedure as per Article 43 of the Consolidated Financial Act, or, in case of non-reserved AIFs, by the authorisation as per Art. 44 of the Consolidated Financial Act.
Operations on turbo certificates and minifuture certificates
Following the introduction by AFM of product intervention measures aimed at limiting the distribution of so-called “turbo-like” products to retail customers in Italy, CONSOB deemed it necessary to verify the existence of conditions for the introduction of similar measures, which should be implemented where protection of investors is deemed necessary. However, the results of the continuous monitoring of the market lead to the conclusion that the characteristics – also in terms of size – of operations on turbo-like products at a national level are not such as to generate the conditions for the adoption of intervention measures similar to those foreseen by the AFM.
CONSOB Weekly newsletter – year XXVII – no. 30 – 2 August 2021
Supervisory guidelines on simple investment firms
The Bank of Italy and CONSOB have published joint supervisory guidelines on simple investment firms (namely, società di investimento semplice), introduced by Article 27 of the Growth Decree. The guidelines includes a summary of the main provisions applicable to simple investment firms, provides for some supervisory orientations and indicates the procedure applicable in the event of a non-transitory exceeding of the equity limit set forth by Article 1, paragraph 1, letter i-quater, of the Consolidated Financial Act.
Bank of Italy and CONSOB’s supervisory guidelines on simple investment firms
Insurance law
Proposed amendments to Solvency II
In a proposal dated 22 September 2021, the European Commission issued proposed amendments to Solvency II package. The underlying rationale being to strengthen the contribution of EU insurers to financing the on-going post pandemic recovery, completing the Capital Markets Union and channelling funds towards the European Green Deal. The main proposed changes relate to the adequacy and effectiveness of recovery and resolution systems, as well as to the supply of information to consumers on their insurers’ financial situation.
Proposal COM (2021) 581 for a directive amending Directive 2009/138/EC
Compliance
Legislative Decree no. 231/2001
The independence of the Surveillance Committee in light of the decision in the “Banca Popolare di Vicenza” case
The Criminal Court of Vicenza has recently ruled on the charge, pursuant to Article 25-ter, paragraph 1, sub-paragraphs r) and s), of Law 231, of the crimes pursuant to Articles 2638 and 2637 of the Italian Civil Code, against Banca Popolare di Vicenza, in relation to the inadequacy, in terms of functioning and composition, of the Surveillance Committee and, as a consequence, of the 231 model adopted by the same bank. With regard to the independence of the Committee’s members, the Court has pointed out that:
- the assessment thereon should not be carried out “ex ante”, but through an “ex post” prognosis on its actual functioning. The latter has, in fact, ascertained the ineffectiveness of the Committee’s work which is due to the fact that its members did not enjoy the necessary independence;
- the independence requisite is not sufficient per se to exclude the Committee’s responsibility, just as the lack of independence is not sufficient to ascertain its responsibility. In this respect, the Court has affirmed the bank’s faculty to appoint as Committee’s members persons who have carried out activities on behalf of the company.
With regard to the Committee’s functioning, the Court has pointed out the inadequacy of its reporting and information flow, underlining how a proper documentation of its activities is essential in the context of criminal charges, given that what is not formally documented cannot be demonstrated before the competent Court.
Vicenza Criminal Court, judgement no. 348 of 17 June 2021 – in Italian only
Data protection
ECB’s decision on limits to the performance of supervisory tasks
ECB has recently issued a decision setting out the rules under which the same may restrict the rights of data subjects in the performance of its supervisory tasks. Pursuant to the decision, the data controller may restrict certain specific rights set out in Regulation (EU) 2018/1725, if thir exercise would jeopardise the performance of ECB’s supervisory tasks, the safety and soundness of credit institutions and the stability of the EU financial system and of each Member State, as well as the effectiveness of the breaches’ reporting.
EDPS’s opinion on the proposed Directive on consumer credit
EDPS has just published its opinion on the EU Commission’s proposed Directive on consumer credit. While appreciating the aim of strengthening consumer protection, EDPS calls for additional measures, including those aimed at delineating the categories of personal data that may be used for credit assessment and those related to considering requirements, role, and responsibilities of databases or third parties providing “credit scores”.
EDPS’ Opinion on the Proposal for a Directive on consumer credits of 26 August 2021
Facebook, personal data protection and the role of the competent authorities
In its recent judgment in case “Facebook Ireland and Others”, CJEU has mitigated the application of the “one-stop shop” mechanism, according to which cross-border data controllers fall under the jurisdiction of a single supervisory authority (i.e. that of the Member State in which the controller has its head office). In such case, however, the Court called for a stronger cooperation among competent authorities, pointing out the need to ensure a consistent and homogeneous application throughout the Union of the rules on the protection of freedoms and fundamental rights of individuals.
Court of Justice of the European Union’s decision of 15 June 2021, case C-645-19
Anti-money laundering
Transposition in Italy of VI EU Directive on combating money laundering through criminal law
The Council of Ministers has recently approved a draft legislative decree transposing VI EU Directive on anti-money laundering, which introduces, among other things, the definition of offenses and sanctions in the related field, the extension of criminal liability to legal persons and the double criminal accountability for some types of offenses.
Consequently, the catalogue of predicate offences pursuant to Law 231 is extended, with a severity that exceeds the requirements: more specifically, it is extended to all crimes, whether intentional or negligent and regardless of the relevant legal framework, while punishing with imprisonment for more than one year (maximum) or six months (minimum).
Consultation on the establishment of a EU Anti-Money Laundering Authority
EU Commission has recently launched a public consultation, which will end on 27 October 2021, on a proposed Regulation for the establishment of a EU Anti-Money Laundering Authority.
The latter’s main task would be to act as an hub for an integrated and decentralized AML/CFT system by cooperating with and coordinating NCA’s activities.
The underlying goal is to fill the legislative gaps in cross-border supervision, assisting NCAs in increasing their effectiveness, guaranteeing harmonized and quality-tested supervisory standards and risk assessment methodologies.
The prevention of the above cases will be pursued by means of directive and supervisory powers directly attributed to the new Authority, which will be able to adopt ad hoc decisions against companies and individuals operating in the financial sector.
EU consultation on the establishment of a EU Anti-Money Laundering Authority
EU Internal Security Fund recently established
An EU Regulation establishing the EU Internal Security Fund has recently been enacted, which concerns national security,(exclusive competence of the Member States) and implements Article 67, paragraph 3, of TFEU. The latter provision requires cooperation and coordination at EU level between NCAs and the EU agencies operating in the sector, in order to implement measures to prevent and combat organized crime and terrorism.
The Fund aims to financially support the priorities set out in the European Security Agenda for the period 2020-2025, including the interoperability of information systems and databases on judicial and police cooperation, asylum and immigration.
EU Regulation no. 2121/1149 of 7 July 2021 in OJ no.71 of 9 September 2021
EBA’s new AML/CFT Guidelines
EBA has recently published a consultation paper on draft guidelines concerning corporate policies and procedures that intermediaries should adopt to ensure compliance with AML/CFT provisions.
The consultation, which will terminate on 2 November 2021, follows by about a month the publication of the latest update of EBA Guidelines on internal governance under Directive 2013/36/EU.
The consultation paper focus on the following main topics:
- the role of the management body in relation to its competences and articulations;
- the role of the AML/CFT compliance officer; and
- the organisation of the AML/CFT compliance function at group level.
EBA Guidelines of 2 July, 2021
EBA’s Consultation Paper of 29 July, 2021
Capital Markets
EU guarantee for synthetic securitization recently approved
Among the actions taken at EU level to support businesses affected by the pandemic, the EU Commission, within the temporary framework of EU rules on State aids, has just approved the introduction of a new synthetic securitization product in order to mobilize large sums (at least 13 billion Euros) in the form of new and riskier loans to SMEs that are expected to be profitable in the long term, active in the 22 Member States that have joined the governance of the EIF.
The new instrument will be offered by the EIB Group (consisting of EIB and EIF), in the form of a guarantee on a risk segment of an asset portfolio, provided that the latter meets certain size thresholds and contains no impaired exposures. The guarantee will be provided by the EIB Group, which will charge the intermediary a subsidised guarantee fee.
Press release of European Commission of 16 August, 2021
Corporate criminal law
Law decree transposing EU Directive on whistleblowing coming soon
The Government is drafting a law Decree transposing, among others, EU Directive on whistleblowing practices, in implementation of Article 23 of Law no. 53/2021 (European Delegation Law 2019/2021), which entered into force on 8 May, 2021.
Among the main novelties on the whistleblowing regime in both the public and private sector, it is worth mentioning:
- the expansion of the list of whistleblowers, in order to include also individuals not yet employed by the company at issue, for information acquired during the selection process or the pre-contractual negotiations;
- the establishment of alternative and internal channels, which guarantee to the whistleblower an adequate protection of his/her confidentiality, by prohibiting the disclosure of personal data without his/her express consent, the prohibition of forms of retaliation (e.g. dismissal, demotion, discrimination, etc.), as well as the provision of economic and judicial support measures; and
- the introduction of penalties of up to € 50,000 for those who engage in obstructive, retaliatory or vexatious behavior towards the whistleblower, who in turn may be sentenced to specific penalties and compensation for damages in the event of disclosure of false information.
Court of Cassation on the existence of the “self- insider”
The Court of Cassation has recently ruled upon the criminal relevance of the figure of the “self-insider” (i.e. an insider trader who exploits privileged information not yet made known to the public, created by the same by virtue of the corporate position held, in order to make a financial profit), according to an interpretation of the term ‘information’ which, according to the Court, does not imply any requirement of alterity between the source of the same information and its user.
The Supreme Court has hence put an end to the long “Cremonini” proceeding by confirming the Milan Court of Appeal’s decision on such case, and recognizing the possibility of an analogical interpretation of Article 184 of the Consolidated Financial Act, in order to include therein the figure of self-insider. In turn, this confirms the possibility of incriminating an insider who has not acquired privileged information from third parties, yet has created it by him/herself.
Court of Cassation’s decision no. 31057/21 of 11 August, 2021
Procedural law
Active and passive legal standing of the incorporated company
According to the joint divisions of the Court of Cassation, the legal standing of the incorporated company following its cancellation from the Companies Register, is governed by the following rules:
- the merger by incorporation extinguishes the incorporated company, which cannot therefore start a lawsuit in the person of its (former) managing director, for the incorporating company has the right make a voluntary intervention in the course of the proceedings, pursuant to Article 105 of the code of civil procedure, in compliance with the rules governing it;
- for the correct establishment of the cross-examination pursuant to Article 15 of Bankruptcy Law, the petition for the declaration of bankruptcy and the related writ of summons must be notified to the acquiring company, which continues all relations, including those of a procedural nature, prior to the merger;
- the question of whether or not a company is subject to bankruptcy is not necessarily depending on the existence of the same company, since the latter can be declared bankrupt within one year from the cessation of its existence (see Article 10 of Bankruptcy Law).
Court of Cassation’s decision no. 21970 of 30 July, 2021
Bankruptcy Law
List of abbreviation
AIFM: Alternative investment fund managers
AFM: Dutch Financial Markets Authority
AML: Anti Money Laundering
Bankruptcy Law: Royal Decree of 16 March, 1942, no. 267, as amended
CJEU: Court of Justice of the European Union
CFT: Combating the Financing of Terrorism
CONSOB: Supervisory authority on the Italian financial market
DGS: Deposit Guarantee Scheme
EBA: European Banking Authority
ECB: European Central Bank
EDPS: European Data Protection Supervisor
EIB: European Investment Bank
EIF: European Investment Fund
ESG: Environmental, Social and Governance
ESMA: European Securities and Markets Authority
European Green Deal: Council Decision (EU) 2016/1841 of 5 October, 2016
GDF: Italian Finance Police
Growth Decree: Law Decree no. 34/2019 of 30 April, 2019
Issuers’ Regulation: adopted resolution no. 11971 of 14 May, 1999, as amended by means of CONSOB’s
IVASS: Italian Institute for Insurance Supervision
Law 231: Legislative Decree no. 231/2001 on administrative liability for criminal offences
NCA: National Competent Authority
OJ: Official Journal of the European Union
TFEU: Treaty on the Functioning of the European Union.
Transparency Directive: Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC (as amended by Directive 2013/50/EU)
TUB: Consolidated Banking Act of 1 September, 1993 no. 385
TUF: Consolidated Financial Act of 24 February, 1998, no. 58
UCITS: Undertaking for the Collective Investment in Transferable Securities.