Newsletter - CONSOB AND ITS ACTIVITIES
Newsletter
News of the week:
Alternative Financial Dispute Resolution Scheme (ACF): President Barbuzzi takes stock of the activities carried out in 2023
Save the Date: 25 June 2024 Consob's annual meeting with the financial market at Borsa Italiana
Save The Date: 9 May 2024 The tokenisation of financial instruments - Outlook for the Italian market
Save The Date: 16 May 2024 Consob sanctions 10 years after the Grande Stevens ruling
Table for Sustainable Finance: the 2023 Annual Report online
Commission decisions
Management decision
The Annual Report of the Alternative Financial Dispute Resolution Scheme (ACF) for the year 2023 was presented on 18 April. The Chairman Gianpaolo Eduardo Barbuzzi presented the results of the Scheme's activities: over EUR 13 million in compensation awarded to savers, thus bringing the sums reimbursed since the start of operations in 2017 to EUR 156 million, with an average of almost EUR 35,000 per capita; more than 1,200 proceedings concluded, bringing the total number of appeals decided in the first seven years of operation of the ACF to 10,250, with almost 57% of the decisions in favour of the claimants and a voluntary execution rate by intermediaries of 95.5%.
Conflict between savers and intermediaries is, however, decreasing: in fact, compared to 1,116 appeals in 2022, 963 appeals were received last year, of which over 90% against bank intermediaries. As the Chairman pointed out, the decrease in appeals over the years must be considered good news. It certifies, in fact, the definitive dissolution of the "serial" litigation, generated by the banking crises of the last decade, especially at the end of 2015 (banks resolved) and mid-2017 (private liquidation of the two Venetian banks): for the first time, the new litigation proved to be in line with the estimates drawn up by Consob in the design phase of the new Scheme, when an annual flow of no more than 1,000 appeals was estimated.
The progressive decline in litigation is also an indication of the fact that the application guidance of the sector's regulatory framework, deployed by the ACF, is effective: the decisions adopted over the years have, in fact, dictated application guidelines capable of sterilising, or at least minimising, the emergence of similar disputes in future.
The Chairman of the ACF then highlighted some crucial points in the relationship between savers and intermediaries:
The pre-contractual phase is still the crucial issue and, for this reason, it must be strictly marked and duly traced, so as to be able to easily reconstruct the events.
Intermediaries are required to comply with an operational process that best protects the interests involved. In this regard, the administration of the profiling questionnaire - a real identity card of the investor - assumes the active participation of both actors to ensure that a reliable profile emerges. It is in fact necessary for the saver to provide correct, updated and complete information and, in turn, for the intermediary to adopt suitable measures to verify the reliability, accuracy and consistency of the information collected. It is also good practice to update the information collected at least three years.
There are also appreciable margins for improvement as regards the methods used by the intermediaries for the suitability assessment, which must be the expression of a reasoned and non-apodic judgment, clearly illustrating the reasons why the investment is considered consistent with the client's objectives, reporting the information used for this purpose and avoiding the use of only generic and standardised expressions.
The Chairman then stressed that a new front of disputes is emerging, induced by the legislation on product governance. Investments made "off-target positive" with respect to the customer profile are possible but must be validly justified by specific facts and appropriately documented: the intermediary must therefore evaluate the actual "tolerability" of the deviation with respect to the customer profile on a case-by-case basis, without using standardised clauses and modus operandi that can result in a substantial circumvention of constraints.
With the acceleration of banking and financial services via the web, litigation relating to investments made through online trading systems is on the increase, within which specific clauses governing the contractual relationship have been brought to the attention of the ACF, characterised by the total exemption of the intermediary from liability in the event of platform malfunctions, without any indication of terms for restoration, nor of alternative channels to guarantee operational continuity. In this regard, the Chairman highlighted that: "Regardless of potentially unfair profiles, such forecasts are, in the current and non-reversible phase of migration of transactions to the web, found to be first of all anachronistic and, in any case, end up transforming the client's position from a weak contractor to a hostage for an indefinite time. Moreover, in a context - that of the financial markets - in which the time factor is so decisive that the seconds weigh like hours, the hours like days, and so on."
In conclusion, in order to promote ever greater participation of savers in the capital market, it was highlighted that not only targeted initiatives to reform the regulatory framework of reference are necessary, accompanied by effective action to support by the supervisory authorities, but also a balanced and protective enhancement of the contractual phase by intermediaries.
On Tuesday 25 June 2024, in the presence of the President of the Italian Republic, Consob's annual meeting with the financial market will take place.
The event, which will take place at the headquarters of Palazzo Mezzanotte, in Piazza Affari in Milan, will officially kick off the celebrations for Consob’s 50th anniversary and can be followed from 11:00 via live streaming on the website www.consob.it.
On Thursday 9 May 2024, from 14:15 to 17:30, at the Auditorium in Rome (Via C. Monteverdi 35), Consob will hold a seminar entitled "The tokenisation of financial instruments – Outlook for the Italian market".
The event will be opened by Piero Cipollone, member of the Executive Committee of the European Central Bank, and closed by Paolo Savona, Chair of Consob.
Participation is open to everyone, although attendees are asked to register online at: http://www.consob.it/web/area-pubblica/iscrizione-seminari.
The full programme for the event is available at the following link https://www.consob.it/documents/1912911/4013740/20240509_seminario_tokenizzazione.pdf/97c8786b-640a-b2ab-2778-348aac000fa8.
On Thursday 16 May 2024, at 11:00, the University of Siena and Finmads (Financial Markets and Administrative Sanctions in the EU) will hold the seminar co-financed by the European Union "Consob sanctions 10 years after the Grande Stevens ruling".
The seminar will be opened by the welcome address of: Roberto Di Pietra (Rector - University of Siena), Mario Perini (Director of the Department of Law - University of Siena), Ciro Corvese (Director of the Department of Business and Law - University of Siena) and Mario Siragusa (President of AIGE).
An introductory speech by Paulo Sérgio Pinto de Albuquerque (Catholic University of Lisbon) will follow.
The seminar will be divided into three sections:
Session I at 11:30, chaired by Elena Bindi (University of Siena): "Consob sanctions: proceedings and trial", divided into the following interventions:
§ "Sanctions in European case law", Andrea Saccucci (University of Campania Luigi Vanvitelli);
§ "The problems relating to the proceedings", Gianluca Romagnoli (University of Padua);
§ "The problems relating to opposition proceedings", Francesco Goisis (University of Milan).
Session II at 14:30, chaired by Andrea Pisaneschi (University of Siena): "Sanctioning profiles and application perspectives", divided into the following interventions:
§ "Ne bis in idem and sanctions", Eva Desana (University of Turin);
§ "The supranational issues relating to Article 187-terdecies", Marco Scoletta (University of Milan);
§ "The application problems relating to Article 187-terdecies": Francesco Mucciarelli (Luigi Bocconi University).
Session III at 16:00, chaired by Marcello Clarich (University of Rome La Sapienza): "The Capital Law (Law no. 21 of 5 March 2024) and the new system of agreements", divided into the following interventions:
§ "Changes to Consob's sanctioning powers introduced by the Capital Law: the expected repercussions", Simone Alvaro (Head of the Consob Administrative Sanctions Office);
§ "The regulation of ‘commitments’ and ‘transactions’ in antitrust sanctioning procedures", Margherita Ramajoli (University of Milan);
§ "The system of ‘commitments’ in the Consob sanctioning proceedings: practical profiles and open issues", Paolo Luccarelli (Galante e Associati Studio Legale).
Marco Ventoruzzo (Luigi Bocconi University) will conclude the proceedings.
Link for registration: https://forms.gle/Rqv1H6A8Qth81WKg7. Streamed live on DIPEC's YouTube channel (@dipec1616).
The Annual Report of the Table for Sustainable Finance, which reports on the activities carried out during 2023, is now online.
The Table, organised into four working groups (WG), dealt with three priority issues: the identification and availability of data on climate and natural risks; sustainability reporting of unlisted small and medium-sized enterprises; and insurance protection against environmental and climate risks.
In particular:
- WG 1 conducted an in-depth survey of the available databases and launched a pilot project on the risk of coastal flooding for the city of Rimini in collaboration with the Euro-Mediterranean Centre on Climate Change, the Italian Banking Association and the voluntary participation of some banking institutions, with the aim of identifying methods and procedures useful for assessing the impact of physical risks on bank exposures;
- WG 2 analysed the availability of data with reference to the real estate assets of households and companies, for aspects related to energy efficiency. During 2024, it will implement a solution, in order to extend and improve the efficiency of access to these;
- WG 3 built a template in order to support small and medium-sized enterprises, not subject to sustainability reporting requirements, in the identification of ESG information, to be provided to the different actors of the economic system (including the actors of the financial system). This template will soon be made available for public consultation;
- WG 4 analysed the causes of the data gap on insurance coverage against physical risks deriving from natural disasters, improved the existing systems for measuring such information and analysed the insurance schemes used abroad to reduce underinsurance against these risks. This year, it will continue to provide technical support for the development (or implementation) of standards aimed at reducing the insurance protection gap for households and businesses.
The Table for Sustainable Finance was set up on the initiative of the Ministry of the Economy and Finance and involves Consob, the Ministry of the Environment and Energy Security, the Bank of Italy, the Institute for the Supervision of Insurance (IVASS) and the Supervisory Commission on Pension Funds (COVIP).
The aim of the Table is to promote the coordination of the efforts and initiatives of the country's institutions and economic system, in order to develop and implement sustainable finance strategies and mobilise private resources, through the capital market, in order to facilitate the achievement of the commitments made by the country at European and international level.
- Restartup Srl SB, based in Vicenza, has been authorised pursuant to article 4-sexies.1 of Legislative Decree no. 58 of 24 February 1998 and article 12 of Regulation (EU) 2020/1503, as a crowdfunding service provider to provide the crowdfunding service referred to in article 2, paragraph 1, letter a, sub ii), of Regulation (EU) 2020/1503 consisting, respectively, in the intermediation of the granting of loans and in the placement without an irrevocable commitment and the receipt and transmission of client orders relating to securities and instruments admitted for crowdfunding purposes issued by project owners or special purpose vehicles (resolution no. 23070 of 18 April 2024).
- Ecomill Srl, based in Milan, has been authorised pursuant to article 4-sexies.1 of Legislative Decree no. 58 of 24 February 1998 and article 12 of Regulation (EU) 2020/1503, as a crowdfunding service provider to provide the crowdfunding service referred to in article 2, paragraph 1, letter a, sub ii), of Regulation (EU) 2020/1503 consisting, respectively, in the intermediation of the granting of loans and in the placement without an irrevocable commitment and the receipt and transmission of client orders relating to securities and instruments admitted for crowdfunding purposes issued by project owners or special purpose vehicles (resolution no. 23069 of 18 April 2024).
- Based on the provisions of article 147-ter of Legislative Decree no. 58/1998 (Consolidated Law on Finance) and article 144-ter et seq. of the Issuers’ Regulation, the Head of Consob’s Corporate Governance Division has determined the minimum investment for the submission of slates of candidates for the election of the board of directors and internal control bodies of the listed company Piquadro Spa. Unless the companies' by-laws prescribe a lower shareholding, the threshold has been set at 2.5%. The full text of the management decision (no. 99 of 15 April 2024) is available on the www.consob.it website, together with a table setting out the criteria used to determine the qualifying shareholdings.