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  1. Background

Through Legislative Decree No. 129 dated 3 August 2017 (hereinafter “L.D. 129/2017”) several amendments to the Legislative Decree No. 58 dated 24 February 1998 incorporating the Consolidated Law on financial intermediation (the “Consolidated Law on Finance”, hereinafter “CLF”) have been introduced in order to implement the first-level provisions set forth by Directive 2014/65/EU, Regulation EU 600/2014 and other executive acts (hereinafter “MiFID 2 Provisions”).

Amendments entered into force on 3 January 2018 and regarded, inter alia, the attribution of competences between Bank of Italy (Italy’s central bank) and Consob (the Italian security markets authority). Following the new set of competences designed by L.D. 129/2017, the framework of Bank of Italy regulatory power needs to be reformed.

It has been recently launched a public consultation process aiming at reorganizing the second-level implementing regulations with regards to the competences of Bank of Italy concerning the entire normative package on intermediaries providing investment or collective investment management services.

 

  1. Consultation on Bank of Italy new regulations implementing CLF – Highlights

The main changes proposed by the amendments scheme contained in the consultation document may be summarised as follows.

Part I includes a new Regulation of Bank of Italy implementing articles 4-undecies and 6, paragraph 1, letter b) and c-bis) of the CLF stating the obligations of the intermediaries providing investment or collective investment management services as to a wide range of diverse areas:

  1. corporate governance and organizational system, including whistleblowing;
  2. remuneration and incentives;
  • business continuity;
  1. administrative and accounting organization, including compliance with the normative framework;
  2. risk management;
  3. internal audit;
  • high management accountability;
  • externalization of core operative functions;
  1. storage of clients’ goods.

To date, the abovementioned list is entrusted to two different regulations, namely (i) the joint Regulation issued by the Bank of Italy and Consob[1], which is about to be repealed by the new regulation under current consultation, and (ii) Bank of Italy Regulation No. 1097 issued on 29 October 2007[2].

The new Regulation of Bank of Italy implementing articles 4-undecies and 6, paragraph 1, letter b) and c-bis) of the CLF will apply to Investment Firms and groups of Investment Firms, also, limited to the provision of investment services, to banks and bank groups, financial intermediaries registered under article 106 of the Legislative Decree No. 141 dated 13 August 2010, Bancoposta and currency traders. Also, new dispositions apply to AMC (asset management companies), SICAVs (open-ended funds) and SICAFs (close-ended funds) as long as they provide collective management service and any other admitted investment service.

Part II contains amendments to the Circular of Bank of Italy No. 285 date 17 December 2013 (“Rules for bank supervision”) and imposes new rules for granting the authorization for the provision of investment services and cross-border operations implementing the so-called “Capital Requirement Directive IV”[3].

The principal interventions concern the following profiles:

authorization to provide investment services by Italian banks: the amendments scheme aims to (i) point out the rules for the application and the conditions for the extension of authorizations, (ii) clarify the informative content of the application for the authorization, and (iii) set forth terms and conditions for revocation and withdrawal of authorization according to the CLF;

provision of cross-border services and investments activities carried out in the EU through the appointment of tied agents: two regulations of the European Commission implementing MiFID 2 are referred to in the document under current consultation, specifying contents and terms of transmission of the preliminary information to the supervision authority for the cross-border provision of investment services;

authorization to provide investments services by non-EU banks: the amendments concern, in particular, terms and conditions for the revocation and withdrawal of the authorization of non-EU banks (with or without secondary establishments) to operate in Italy.

 

  1. Amendments to Fund Manager regulatory framework

Although Fund Managers are not included in the amendments scheme of the secondary-level discipline implementing CLF, those are involved indirectly pursuant to referrals contained in Directives UCITS and AIFMD to MiFID 2 Provisions.

Bank of Italy has therefore taken the chance to revise also the corporate governance regulatory framework concerning Fund Managers with particular attention to (i) governance organizational requirements and (ii) corporate bodies.

National authorities decided to extend to Fund Manager rules applying to entities providing investments services with the declared purpose of giving coherence to the whole governance discipline applicable to the supervised entities. The corporate governance requirements to Fund Managers includes: informative fluxes, educational trails, periodic self-assessment of corporate bodies and rules of bodies composition in terms of quantity and genre. Amongst these, three issues are considered the most urgent to be introduced into the Fund Managers regulatory framework: (i) the nominee of independent directors, (ii) the institution of committees (“nominee”, “risks” and “remunerations”) and (iii) the prohibition to overlap the President of the Board of Directors and the Chief Executive Officer roles.

 

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The consultation document, comprehending the explanatory memorandum and the scheme of amendments, has been published on 23 August 2018 and it is available on the Bank of Italy official website.

 

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For further information, please contact one of the professional at our firm:

Avv. LL.M. Luca A. Lo Po’

Email: llopo@glglex.com

Tel: 0039 02 82826000

Avv. LL.M. Donatella Naselli

Email: dnaselli@glglex.com

Tel: 0039 02 82826000

 

[1] Regulation issued by the Bank of Italy and Consob on 29 October 2007, containing the Regulation on the organization and procedures for intermediaries providing investment or collective investment management service.

[2] Regulation on minimum capital and abroad operations of Investment Firms, deposit of clients’ goods (Resolution of Bank of Italy n. 1907 of 29 September 2007), published on the Italian official gazette n. 255 dated 29 October 2007.

[3] Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC.