Results of the public consultation on amendments to AFD Regulation(27 May 2021) - CONSOB AND ITS ACTIVITIES
Most of the documentation is available only in Italian
Consob, following the public consultation, taking into account the opinion of the Committee of Market Operators and Investors ("CMOI"), with Resolution no. 21867 of 26 May 2021, made some amendments to the Regulation concerning the Arbitrator for Financial Disputes ("AFD Regulation" or "Regulation"), approved by Resolution no. 19602 of 4 May 2016.
The aforementioned amendments to the AFD Regulation - adopted following the periodic review carried out, pursuant to Article no. 8 of the Regulation concerning the procedures for the adoption of general regulatory acts, approved by Resolution no. 19654 of 5 July 2016, taking into account the operational needs that emerged in the early years of the Arbitrator for Financial Disputes ("AFD") and the data relating to the proceedings managed and concluded - they are mainly aimed at simplifying the procedure before the AFD and to improve its functioning and, in summary:
- align the definition of "intermediaries", relevant for the purposes of the Regulation, with the new definitions of "portal managers" and "persons authorized to insurance distribution", instituted following the most recent amendments to the TUF (Consolidated Law on Finance);
- explicitly extend the scope of operation of the AFD to disputes relating to the violation of the obligation to deliver to the investor the document containing the key information (Key Information Document) referred to in Articles nos. 13 and 14 of Regulation (EU) no. 1286/2014;
- better define the scope of operations of the AFD, referring to disputes relating to transactions or conduct which have been carried out within the tenth year prior to the date of the appeal;
- introduce, as a hypothesis of inadmissibility of the appeal, the pending arbitration or jurisdictional proceedings, the existence of a previous decision on the merits taken by the AFD or the outcome of a judicial or arbitration proceeding;
- reiterate that the presentation of the appeal, the contradictory and the exchange of documentation must take place exclusively through the electronic system, also requesting the parties to make use of the forms that will be made available on the AFD website;
- introduce provisions aimed at facilitating the amicable settlement of the dispute and the fulfilment of decisions (such as the possibility for the parties to request a suspension of the proceedings in order to find an agreement; the termination of the proceedings in case of reaching an agreement or the full satisfaction of the claim; the postponement of the publication of the notification of non-fulfilment in the event of the start of negotiations aimed at reaching an agreement on the execution of the decision; the possibility of late fulfilment with consequent cancellation of the notification of non-fulfilment; the elimination or the reduction of the loss contribution payable by the intermediary in the presence of a conciliatory proposal, rejected by the applicant, with reference to amounts equal to or greater than those recognized by the AFD in the decision);
- govern in a more precise way the system of terms for the conclusion of the procedure in order to speed up the decision-making phase.
Consob decided not to set up the institution of reimbursement of defence costs on the assumption that, even in the absence of an express regulatory provision, such costs can be liquidated to the appellant - if the conditions are compliant - as a component of the damage suffered.
The amendments made to the AFD Regulations will come into force from 1st October 2021.
They will apply to proceedings initiated with an appeal lodged after the aforementioned date of entry into force, with the exception of the amendments relating to the rules on the execution of the decision (Article no. 16 of the Regulation) which will apply to decisions taken from the date of entry into force, albeit relating to proceedings initiated before that date with an appeal lodged.
The Resolution extends the period referred to in Article no. 2, paragraph 2, of Consob Resolution no. 19783 of 23 November 2016, already extended until 1st July 2021 by Article no. 1, paragraph 1, of Consob Resolution no. 21666 of 22 December 2020.
For further details, please visit the website www.acf.consob.it.
Documentation relating to the results of the consultation of 19 December 2019:
- Illustrative report of 27 May 2021
- Resolution no. 21867 of 27 May 2021
- Document submitted for public consultation on 19 December 2019
- Comments on the consultation document of 19 December 2019
- Opinion of Committee of Market Operators and Investors ("CMOI") (18 March 2020)
- Dissenting opinion to the second draft Opinion Committee of Market Operators and Investors ("CMOI") (31 March 2020)