News of the week:
Abusive financial services: Consob blacks out 6 new websites
Provisions pursuant to article 103, paragraph 1, of the decree law of 17 March 2020, no. 18: Consob communication
Coronavirus emergency: Consob extends the time limits within which certain periodic notifications due from intermediaries and portal operators must be sent
Coronavirus emergency: Consob draws attention to the obligations of online portal operators
Brexit - Consob draws operators' attention to the measures to be adopted by the end of 2020
ESMA public statement on the implications of Covid-19 on the reporting obligations of listed companies
ESMA public statement on the accounting implications of the Covid-19 epidemic for the calculation of expected credit losses under IFRS 9
CEAOB draws auditors' attention to the impact of Covid-19
ESMA publishes the ESEF Regulation conformance suite
Investor protection warnings from other regulatory authorities
- NEWS OF THE WEEK -
Consob has ordered the black-out of 6 new websites that abusively offer financial services/financial products: 4 abusive financial intermediation sites and 2 sites through which financial products are offered without a prospectus.
The Authority availed itself of the powers deriving from the "growth decree" (Law no. 58 of 28 June 2019, article 36, paragraph 2-terdecies) regarding the blackout of the sites of abusive financial intermediaries, as well as the new power introduced by Law no. 8 of 28 February 2020 (article 4, paragraph 3-bis), regarding the blackout of the site through which the abusive offer is made.
Below are the sites Consob has ordered to be blacked out:
- Dubai FXM Ltd (website www.dubaifxm.co and URL dubaifxm.co);
- "DAX1001" (website dax1001.com);
- Global Pegasus Ltd (website www.fx4lux.com);
- "AirBit Club" (websites https://airbitclub.com and www.bitbackoffice.com).
The number of sites blacked out since July last, when Consob got the power to order that the websites of fraudulent financial intermediaries be blacked out, has thus risen to 180.
The measures adopted by Consob can be consulted on the website www.consob.it.
The black-out of these websites by internet service providers operating on Italian territory is ongoing. For technical reasons, it can take several days for the black-out to come into effect.
Consob draws investors' attention to the importance of adopting the greatest diligence in order to make informed investment choices, adopting common sense behaviours, essential to safeguard their savings: these include, for websites that offer financial services, checking in advance that the operator with whom they are investing is authorised, and, for offers of financial products, that a prospectus has been published.
To this end, Consob would remind you that there is a section on the homepage of its website www.consob.it entitled "Be aware of fraud!", providing useful information to warn investors against financially abusive initiatives.
* * *
Consob has also suspended for 90 days the offer to the public resident in Italy of investments of a financial nature made by "AirBit Club", and through the websites https://airbitclub.com and www.bitbackoffice.com, pursuant to Article 99, paragraph 1 b), of the Consolidated Law on Finance (Resolution no. 21309 of 25 March 2020).
PROVISIONS PURSUANT TO ARTICLE 103, PARAGRAPH 1, OF THE DECREE LAW OF 17 MARCH 2020, NO. 18: CONSOB COMMUNICATION
Article 103(1) of Decree-Law no. 18 of 17 March 2020 contains regulations on the suspension of the time limits for proceedings pending before public administrations. The law prescribes that for proceedings pending on or commenced after 23 February 2020, the period between 23 February and 15 April 2020 shall not be taken into account.
With regard to the administrative acts for which Consob is responsible and which are regulated by national law, the following clarifications are provided on the scope of the suspension introduced by this law.
For the purpose of calculating the time limits that apply to the conduct of the administrative proceedings that are the responsibility of Consob, including penalty proceedings, pending on 23 February 2020 or started after that date, the period between said date and 15 April shall not be included.
The suspension applies automatically, pursuant to law, and the period included in the time limit calculation will start again from 16 April 2020.
The suspension of the time limits also applies to administrative proceedings - pending at the date of entry into force of the decree-law - characterised by a "significant" period of time for their conclusion, i.e. those periods, the expiry of which, without the adoption of an express measure, produce by law the effect of the acceptance or rejection of the application made by the private party (pursuant to Article 103, paragraph 1, of Legislative Decree no. 18/2020 "The time limits prescribed by law for the formation of the final will of the administration in the forms of significant silence prescribed by law shall be extended or deferred for the corresponding period of time").
Also in this case the prescribed effect of the law is automatic and determines that:
-the calculation of "significant" time limits, which started before 23 February 2020 and were in progress on the date of entry into force of the Decree-Law shall be suspended, and shall resume from 16 April 2020;
- significant" time limits that start in the period from 23 February to 15 April 2020 shall restart on 16 April 2020.
Without prejudice to the foregoing, Consob, in general, will arrange to carry out its administrative activity according to the time limits ordinarily established, in compliance with the procedural guarantees and without prejudice to those cases in which its activity is conditioned by the procedural contribution of third parties, private or public, which may avail themselves of the suspension provided for by the law, also without notifying Consob.
Precautionary and urgent measures
Measures of a precautionary and urgent nature falling within the competence of Consob do not fall within the scope of application of the suspension provided for by Article 103 of the Decree-Law, given that, based on the secondary regulations implementing Law no. 241 of 1990 (Consob Regulation no. 18388 of 2012), the relevant procedures do not contemplate a period of time for their conclusion, within which Consob must act to adopt the measure.
Obligatory disclosure to Consob
The provision contained in Article 103 of Decree-Law no. 18/2020 does not apply to time limits directly prescribed in laws, regulations or general decisions that establish obligations to transmit information or documents to Consob. These provisions, which are intended to protect Consob's supervisory activities, do not give rise to administrative proceedings; consequently, such obligations must be fulfilled within the ordinary time limits.
However, in view of the emergency situation and the measures taken by the Presidency of the Council of Ministers to contain the Covid-19 contagion, Consob reserves the right to extend the time limits prescribed in regulations or decisions of a general nature on certain specific topics.
In exercising its supervisory powers, it will, in any event, take due account of the current emergency context.
Consob has decided (Resolution no. 21314 of 25 March 2020) to allow intermediaries an extension of 60 days to the time-limits within which the report on how services are provided, and the report on the organisational structure required in Resolution no. 17297/2010 are to be sent.
The decision was taken in the light of the containment measures adopted by the government to deal with the coronavirus emergency. The restrictions in force as a result of these measures could in fact preclude supervised entities from fulfilling their obligations in a timely manner.
Similarly, Consob has also extended by 60 days the time limits within which Communications portal operators must send the information prescribed in Article 21, paragraph 3, of the Regulation on the raising of capital through online portals (Resolution no. 21315 of 25 March 2020) .
Consob has cautioned (Warning Notice no 2/2020 of 25 March 2020) online portal operators to consider with due diligence the potential implications that the Covid-19 emergency could have in terms of investor protection.
The adoption of increasingly stringent measures to contain the pandemic could, in fact, affect various aspects of how such portals operate (management of orders, control mechanisms, etc.).
In particular, the Commission emphasised the need, especially in those areas most affected by the spread of the virus, to: (i) adopt the most appropriate measures to ensure the continuity of the activities carried out on the portal; (ii) with regard to information on individual offers, to publish promptly any updates provided by the offeror, including information on any significant new facts occurring after the publication of the offer that might influence investment decisions.
Consob therefore invites portal operators to describe the measures they have adopted in this regard in the report on the activities carried out and on their organisational structure pursuant to Article 21, paragraph 3, of the Regulation on raising capital through online portals adopted with Resolution no. 18592 of 26 June 2013.
Consob has issued three Warning Notices (no. 3/20, no. 4/20 and no. 5/20 of 26 March 2020) setting out the measures to be taken by operators before the end of 2020 following the ratification of the agreement for the withdrawal of the United Kingdom from the European Union (EU).
The attention of British operators providing investment services in Italy has been drawn to the need to adopt all the measures to ensure business continuity in our country or, if necessary, to undertake an orderly exit from our domestic market. Operators will also have to provide Italian customers with updated information on the consequences of the changed operating conditions resulting from Brexit, also with reference to the specific implications for existing OTC derivative contracts.
The Notice (no. 3/20 of 26 March 2020) became necessary because the transitional rules contained in Decree-Law no. 22 of 25 March 2019 in the eventuality of a no-deal Brexit are now outdated. The related Consob Communications, and the notifications sent by operators to Consob pursuant to the decree, are therefore no longer valid. The measures adopted by Consob in 2019 to ensure the continuity of operations of Italian and British trading venues are no longer effective either.
In fact, a new "transition period" has begun, which will last until 31 December 2020 (unless extended), during which European legislation will continue to apply as if the United Kingdom were still in the EU. Subsequently, British entities operating in Italy will be subject to the rules applicable to non-EU entities, as will the Italian entities that operate in the United Kingdom.
Similarly, for trading venues, the venue operators have been reminded that, if they intend to operate at the end of the transition period, they will have to submit a timely application to Consob according to the regulatory regime applicable to them (Notices no. 4/20 and no. 5/20 of 26 March 2020). In addition, the operators of venues that previously, in 2019, obtained from Consob a nulla osta, authorisation, or recognition in the eventuality of a no-deal scenario (or that had in any case submitted an application that effect), have been invited to communicate whether or not they are still interested in obtaining the measure to extend operations, and to report any changes to the information previously communicated in their first application.
The ESMA has published a Public Statement on the impacts of Covid-19 on the obligations that the Transparency Directive places on issuers listed on regulated markets.
The ESMA requires national authorities to recognise a grace period to (i) issuers, in complying with the deadlines set by national law transposing the Transparency Directive, and (ii) auditors, in completing their activities in a timely manner, because of the difficulties they may encounter due to the measures adopted by government authorities to contain the spread of Covid-19.
In particular, ESMA has prescribed that the deadline set by the Transparency Directive be extended:
- for annual financial reports referring to a reporting period ending on or after 31 December 2019 but before 1 April 2020, for a period of no more than two months following the deadline set by the Transparency Directive;
- for half-yearly financial reports referring to a reporting period ending on or after 31 December 2019 but before 1 April 2020, for a period of one month following the deadline set by the Transparency Directive.
This guidance does not apply to those countries in which the local authorities have already adopted legislative amendments to the provisions of the Directive.
However, the ESMA stresses that financial reporting is an important factor for the economic decisions of users of financial information, as well as for the exercise of their voting rights or influence on the actions of the management, and issuers should therefore make every effort to prepare their financial reports in accordance with the reference framework, and to publish them before the legal deadline.
However, where issuers anticipate that they will not be able to meet the deadlines set by the national laws transposing the Transparency Directive, they are required to inform the competent national authority and, in coordination with it, consider if they should provide information to the market on the reasons for this delay and, as far as possible, on the estimated publication date.
With regard to the audit implications of the Covid-19 outbreak, the ESMA also draws attention to the document issued by the Committee of European Auditing Oversight Bodies (CEAOB) on 25 March 2020.
The ESMA also reminds issuers that the disclosure obligations contained in Article 17 of the Market Abuse Regulation ( MAR) remain unchanged and, therefore, where there are no situations that permit delayed disclosure, issuers must disclose inside information to the market without delay.
The ESMA has published a Public Statement on the accounting implications of the Covid-19 epidemic for the calculation of expected credit losses under IFRS 9.
The document aims to promote the consistent application of the International Financial Reporting Standards (IFRS) in the European Union (EU) and to avoid divergences on the application of IFRS 9 "Financial Instruments", in the specific context of the Covid-19 outbreak. It addresses in particular the accounting implications of measures taken or proposed by national governments and EU bodies to address the negative systemic economic impact of Covid-19.
The European markets authority has, among other things, coordinated with the European Banking Authority (EBA), which published a communication on the prudential framework in the light of the Covid-19 measures at the same time.
The Public Statement is of particular relevance for issuers in the banking sector, given the specific effects that the public support measures for businesses decided by governments to counter the severe economic crisis by Covid-19 will have on the assessment of expected losses on loans covered by these measures.
The most significant impact from Covid-19 that can reasonably be expected in the forthcoming 2020 financial statements of Italian banks is related to the increase in impairment losses on loans, due to the deterioration in credit quality resulting from the slowdown in consumption and in production activities.
The Public Statement provides some guidance to issuers, and particularly to banks, on the following aspects of IFRS 9: a) accounting for changes in loan terms resulting from the introduction of support measures; b) estimation of expected credit losses; c) assessment of a significant increase in credit risk (Significant Increase in Credit Risk or SICR); d) public guarantees on exposures; e) transparency of financial statements and reports on operations.
In general, the ESMA is of the opinion that the principle-based nature of IFRS 9 provides sufficient flexibility to accurately reflect the specific circumstances of the effects of the Covid-19 outbreak and related public measures.
The ESMA reminds issuers that they are required to describe the main risks and uncertainties they face as a result of the Covid-19 outbreak in their reports on operations, and that, under the Market Abuse Regulation, they must provide any relevant information on the impact of Covid-19 on their fundamentals and financial situation to the market without delay.
On 25 March 2020, the Committee of European Auditing Oversight Bodies (CEAOB), the European committee for the coordination of oversight of external auditors, of which Consob is a member, published a Warning Notice that highlights the areas that are particularly important for carrying out audits of the effects of the Covid-19 pandemic (coronavirus).
In particular, the auditors' attention is drawn, also in relation to group audits, to the need to acquire probative elements for the purposes of expressing their opinion, on issues of business continuity, on adequate disclosure of the effects of "events following the end of the financial year", on the importance of discussion with those responsible for the governance of the companies and on the representation of "key aspects" in the audit report.
The CEAOB notice also takes account of the general criteria set out by the ESMA in the Statement of 11 March 2020 with regard to disclosure and financial reporting as well as in the Statement published on 25 March 2020 on the effects of Covid-19 in the application of IFRS 9.
The ESMA, the European Securities and Markets Authority, has published the "ESEF Conformance Suite" necessary to facilitate use of the European Single Electronic Format (ESEF), which is mandatory for all issuers on regulated markets in the European Union when preparing annual financial reports from 1 January 2020. In particular, from 2020, the ESEF Regulation requires all issuers with securities listed on a regulated market in the European Union to prepare their annual financial reports in xHTML and other transactions relating to IFRS consolidated financial statements contained therein using XBRL tags and iXBRL technology.
The Suite is essentially technical in nature (it is for XBRL software developers) and allows (them) to determine if a software product is able to detect and mark breaches of ESEF requirements contained in a filing. It is based on the rules and guidelines set out in the ESEF Regulation and the ESEF Reporting Manual. An Excel file attached to the Suite describes the rules and guidelines and test cases, together with the error codes provided in case of non-conformance.
The supervisory authorities of the United Kingdom (Financial Conduct Authority - FCA), Austria (Financial Market Authority - FMA), Belgium (Financial Services and Markets Authority - FSMA), Spain (Comisión Nacional del Mercado de Valores - CNMV), Luxembourg (Commission de Surveillance du Secteur Financier - CSSF), Switzerland (Swiss Financial Market Supervisory Authority - FINMA) and Hong Kong (Securities and Futures Commission – SFC) report the companies and websites offering investment, financial and insurance services without the required authorisations.
Reported by the FCA:
- Best Rate Bonds / BAH Financiere Management Limited (www.thebestratebonds.co.uk), with stated address in London (UK);
- Berwick Asset Management (www.berwickassetmanagement.com), with stated address in Zurich (Switzerland);
- Walker Bryan (www.walkerbryan.com), with stated address in Belgium;
- Trade With Lucas / James Frederick Lukas (firstname.lastname@example.org, email@example.com);
- MTI24 (www.mti24.com), with stated address in Majuro (Marshall Islands);
- Capitalcoin X (www.capitalcoinx.com) with stated address in London (UK);
- Credit Finance Ltd / Credit Finance (Customerserviceloanshelpline@gmail.com; Loanlenderskltd@googlegroups.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org) with stated address in Manchester (UK);
- FX Goat (www.carterFS.com) with stated addresses in Zurich (Switzerland) and Sofia (Bulgaria);
- Carter FS / Carter FS FinServices (www.carterFS.com), with address in Zurich (Switzerland). The company was the subject of Consob decision no. 20857 of 20 December 2020 and, subsequently, of an order to internet service providers to block access to the site from Italy (see "Consob Informa" no. 11/2019 of 25 December 2019) and then also reported by the FMA (see "Consob Informa" no. 12/2019 of 1 April 2019);
- Claims Consultants (email@example.com);
ING Investment Bank / ING Bank
(www.ing-investmentbank.com), clone of the authorised company Ing Bank NV (firstname.lastname@example.org);
BlackRock Advisors (UK) Ltd (email@example.com,
clone of the authorised company BlackRock Advisors (UK) Limited based in London (UK);
- Town Loans (www.townsloans.co.uk), with stated address in Liverpool (UK), a clone of the authorised Town Loans Company Limited based in Liverpool (UK);
- Silicon Valley Bank (www.svbukc.com) with stated address in Los Angeles (CA - USA), clone of the authorised company Silicon Valley Bank (firstname.lastname@example.org) based in London (UK);
- Strategic Investment Funds (www.horizon-asset.ltd) clone of the authorised company Horizon Asset LLP based in London (UK);
- Swiss Life Asset Group (www.swisslife-assetgroup.com) with stated address in London (UK) clone of the authorised company Swiss Life (Liechtenstein) AG, based in Liechtenstein.
Reported by the FMA:
- Tradofx Limited / ITQ Code LTD (www.tradofx.com);
- Goldberg Financial (www.goldberg.financial.com, www.de.goldberg.financial.com), with stated address in Brussels (Belgium).
- United LondonBrokers (united-lb.com), with stated address in London (UK);
- Digital Exchange Limited / Securex Plus Solutions EOOD (www.dgxltd.com), with stated address in Sofia (Bulgaria).
Reported by the FSMA:
Reported by the CNMV:
- D. Antonio Orlando Barreto Santana.
Reported by the CSSF:
- Golding Capital Partners GMBH (www.goldingcapitalpartners.com);
- Gaesco Gestion (www.gaesco-gestion.com), with stated address in Luxembourg;
- PMS / PMS Gestion (www.pms-gestion.com), clone of the authorised company Portfolio Management Solutions (PMS).
Reported by FINMA:
- KlickDealsGmbH, with stated address in Opfikon (Switzerland);
- CfdSwiss (www.cfdswiss.ch), with stated address in Zurich (Switzerland);
Reported by the SFC:
- Huatai Stock (www.huataistock.com), with stated address in Hong Kong;
- Share Founders (www.sharefounders.com), with stated address in Hong Kong;
- Regency Limited (www.regencylimited.com), with stated address in Hong Kong;
- www.tangeh.com, a website not attributable to the authorised company UBS Securities Hong Kong Limited, authorised by the SFC;
- www.sck-invest.com, a website not attributable to the authorised company SCK Securities Limited, authorised by the SFC;
- www.zczcjj.com, a website not attributable to Zhongcai Asset Management Limited and Zhongcai Securities Limited, companies authorised by the SFC;
- 美港交易中心 (Chinese name only).
- Clarification on the scope of the suspension introduced by the provisions of Article 103, paragraph 1 of Decree-Law no. 18 of 17 March 2020 (Communication no 2/20 of 25 March 2020).
- The deadlines for sending information established by resolution no. 17297 of 28 April 2010, concerning the obligations to communicate data and news and the transmission of documents by entities supervised by Consob, if said deadlines fall before 3 April 2020, have been extended by 60 days (Resolution no. 21314 of 25 March 2020).
- The deadlines specified in the Regulation on the raising of capital through online portals, adopted by resolution no. 18592 of 26 June 2013, for the communication of data and news and the transmission of documents to Consob have been extended by 60 days (Resolution no. 21315 of March 2020).
- Warning Notice to operators of online portals to consider with due diligence the potential implications of the Covid-19 emergency in terms of investor protection (Warning Notice no. 2/2020 of 25 March 2020).
- Warning Notices on the measures to be taken by operators before the end of 2020 following the ratification of the agreement for the withdrawal of the United Kingdom from the European Union (Warning Notices no, no. 4/20 and no. 5/20 of 26 March 2020).
The information note relating to the programme for the offer to the public of conditionally protected capital and fully or partially protected capital certificates issued by Mediobanca Banca di Credito Finanziario Spa has been approved (Resolution of 25 March 2020).
Order, pursuant to art. 7-octies, letter b) of Italian Legislative Decree no. 58 of February 24, 1998 (Consolidated Law on Finance) to cease infringement of art. 18 of the TUF, put in place by:
Dubai FXM Ltd through the websites www.dubaifxm.co and URL dubaifxm.co (Resolution no. 21310 of 25 March 2020);
"DAX1001" through the website dax1001.com (Resolution no. 21311 of 25 March 2020);
GlobalPegasus Ltd through the website www.fx4lux.com (Resolution no. 21312 of 25 March 2020);