Resolution no. 21396
Temporary suspension of the application of some provisions of the Regulation adopted with Resolution 17221/2010 and subsequent amendments on related party transactions (RPT) to facilitate the use of the exclusion option in cases of urgency by companies with shares listed on regulated markets and by companies with shares widely distributed among the public
THE NATIONAL COMMISSION FOR COMPANIES AND THE STOCK EXCHANGE
GIVEN the Article no. 2391-bis of the Civil Code, as last amended by the Legislative Decree no. 49 of 10 June 2019, relating to transactions with related parties;
GIVEN in particular the first paragraph of the aforementioned article pursuant to which "The administrative bodies of companies that make use of the risk capital market adopt, according to general principles indicated by Consob, rules that ensure the transparency and the substantial and procedural correctness of the transactions with related parties and disclose them in the management report; for these purposes they may be assisted by independent experts, due to the nature, value or characteristics of the transaction " and the third paragraph, according to which "Consob, in defining the principles indicated in the first paragraph, identifies, in accordance with the Article no. 9-quater of Directive 2007/36/EC, at least:… b) procedural and transparency rules proportionate to the relevance and to the characteristics of the transactions, the size of the company or the type of company that uses the risk capital market, as well as cases of exemption from the application, in whole or in part, of the aforementioned rules ... ";
GIVEN the rules for implementing the aforementioned legal provisions contained in the Regulation on transactions with related parties (RPT), approved with Consob resolution no. 17221 of 12 March 2010, as subsequently amended and integrated or "RPT Regulation";
GIVEN in particular Article no. 11, paragraph 5, of the RPT Regulation, according to which when an operation with a related party is the responsibility of the shareholders' meeting or must be authorized by it "Where expressly permitted by the articles of association, the procedures may provide that, in urgency connected to situations of corporate crisis, without prejudice to the provisions of Article no. 5, where applicable, transactions with related parties are concluded in derogation of the provisions of paragraphs 1, 2 and 3, provided that the assembly called to resolve applies the provisions of Article no. 13, paragraph 6, letters c) and d). If the assessments of the control body pursuant to Article no. 13, paragraph 6, letter c), are negative, the shareholders' meeting resolves in the manner referred to in paragraph 3; otherwise, Article no. 13, paragraph 6, letter e) applies ";
GIVEN, in addition, Article no. 13, paragraph 6, of the same RPT Regulation, according to which "In cases where the operation is not the responsibility of the shareholders' meeting and should not be authorized by it, the procedures may provide, where expressly permitted by the articles of association, that in case of urgency, without prejudice to the provisions of Article no. 5, where applicable, transactions with related parties are concluded in derogation of the provisions of Articles no. 7 and no. 8 as well as Annex 2, provided that: a) if the operation to be carried out falls within the competence of a managing director or executive committee, the chairman of the board of directors or of management is informed of the reasons for urgency before the completion of the operation; b) such transactions are subsequently subject, without prejudice to their effectiveness, of a non-binding resolution of the first useful ordinary meeting; c) the body that convenes the meeting prepares a report containing adequate reasons for the reasons for the urgency. The control body reports to the shareholders' meeting its assessments regarding the existence of reasons of urgency; d) the report and the assessments referred to in letter c) are made available to the public at least twenty one days before the date set for the meeting at the registered office and in the manner indicated in Title II, Chapter I, of the Issuers Regulation. These documents can be contained in the information document referred to in Article no. 5, paragraph 1; e) within the day following that of the shareholders' meeting, the companies make the information on the results of the vote available to the public in the manner indicated in Title II, Chapter I, of the Issuers Regulation, with particular regard to the number of votes cast overall by the shareholders unrelated.";
GIVEN that in the present phase of emergency connected to the COVID-19 pandemic and of resulting adverse economic and financial situation, several listed shares companies or companies with shares widely distributed among the public may need to urgently carry out capital strengthening transactions with related parties' intervention;
GIVEN that the rules referred to in the RPT Regulation require that the right of exclusion in case of urgency is expressly provided for in the procedures adopted pursuant to the same Regulation and in the company statute;
GIVEN that some companies have not exercised the options provided for by the aforementioned articles, or have exercised them only partially, or, although having envisaged them as part of the procedure, have not introduced the statutory provision necessary to be able to apply them;
GIVEN that the right of exclusion for urgent cases established by the aforementioned Articles no. 11, paragraph 5, and no. 13, paragraph 6, of the RPT Regulation allows to derogate from the procedural rules provided for in the RPT Regulation while remaining unaffected the transparency obligations provided for by the same Regulation, such as the obligation to provide specific information on related party transactions in communications pursuant to Article no. 17 of Regulation (EU) no. 596/2014, pursuant to Article no. 6 of the RPT Regulation, and the obligation to publish an information document about transactions of greater importance, pursuant to Article no. 5 of the RPT Regulation;
GIVEN that the option of exclusion from the procedural rules for cases of urgency governed by the aforementioned rules of the RPT Regulation provides for alternative safeguards such as, among other things, a specific disclosure to the subsequent ordinary shareholder meeting;
CONSIDERING, therefore, that in the present emergency period from COVID-19 pandemic, the aforementioned provisions of the RPT Regulation may be suspended until 30 June 2021 in the part in which it is requested that, for the application of the exemption option for cases of urgency, this option is envisaged in the procedures for transactions with related parties and in the company statute.
D E L I B E R A T E S
1. the application of the provisions contained in Article no. 11, paragraph 5, and Article no. 13, paragraph 6 of the RPT Regulation is suspended from the date of entry into force of this Resolution until 30 June 2021, for capital strengthening operations, where it is envisaged that, for the purposes of recourse to the exemption option for cases of urgency, this option is contemplated in the procedures adopted pursuant to Article no. 4, paragraph 1, of the same Regulation as well as in the company statute.
2. This resolution is published on the Consob website and in the Official Journal of the Italian Republic1. It comes into force on the day following its publication in the Official Journal.
10 June 2020
(1) Being published in the Official Journal of the Italian Republic.