Newsletter no. 24
On 9 March 2023, the Italian Government approved the Legislative Decree (the “Decree”) implementing Regulation (EU) 2020/1503 on crowdfunding service providers for business (the “Regulation”) into Italy, which amended certain provisions of the Italian Financial Act (Legislative Decree No. 58/1998, “IFA”).
The Decree introduces Article 4-sexies.1 IFA which designate Consob as the Italian competent authority to deal with cross-border administrative cooperation with other EU competent authorities and ESMA, and entrusts Consob with the power, subject to the opinion from Bank of Italy, to grant and withdraw the authorization to crowdfunding service providers for debt financing activities (so-called “lending crowdfunding”) and for equity investment activities (so-called “equity crowdfunding”), except when the authorization or the withdrawal falls within the competence of the Bank of Italy (as in the case of banks, payment institutions, IMELs and financial intermediaries registered in the register pursuant to Article 106 of the Italian Banking Act).
According to the Decree, Consob shall be the competent authority to ensure compliance with the obligations set out by the Regulation as to the matter of transparency and fairness, and Bank of Italy shall be the competent authority as regards:
- capital adequacy, containment of risk and equity investments, and related disclosures;
- corporate governance and general organizational and business continuity requirements;
- administrative and accounting organization, internal controls, remuneration and incentive systems, risk management, including internal audit and outsourcing of operational functions;
- requirements of participants in the capital of the crowdfunding service provider holding at least 20% of the share capital or voting rights and requirements of the natural persons responsible for the management of the crowdfunding service provider;
- controls on project owners.
As regards crowdfunding offers, the Decree replaces the previous version of Article 100-ter IFA and provides that, in derogation from the provisions of paragraph 1, Article 2468 of the Italian Civil Code (“cc”), quotas in limited liability companies may be the object of public offers of financial products, including through crowdfunding platforms, in accordance with the restrictions set forth in the Regulation. Subscriptions may be executed through approved intermediaries providing one or more investment services in name and on behalf of the participants in the crowdfunding offer, and not according to the standard procedure set out by paragraph 2, Article 2470 cc, i.e. through notarial deed of transfer filed with the Companies’ register within thirty days.
In this case, within thirty days following the closing of the offer, the approved intermediaries will have to file with the Companies’ Register a certificate confirming that they are shareholders on behalf of third parties and bearing the cost thereof.
Any share transfer by a subscriber or subsequent purchaser will be executed by simply recording the transfer in the registers kept by the authorized intermediary, thus replacing the formalities provided for in the above mentioned paragraph 2, Article 2470 cc.
In light of the repeal of Article 50-quinquies IFA (“Management of portals for the raising of capital for small and medium-sized enterprises and social enterprises”), according to which Consob had adopted its own Consob Regulation No. 18592 on the raising of capital through online portals, with the entry into force of the Decree, the said Consob Regulation will be repealed.
As a result, Consob and Bank of Italy shall provide for a simplified authorization procedure for subjects that have been already authorized under national law before the date of entry into force of the Regulation, i.e. 9 November 2020 and as long as the requirements set out in Article 12 of the Regulation are met.
For the time being until the authorization is received from Consob or Bank of Italy, those entities already operating in compliance within the framework of the repealed Article 50-quinquies IFA, are allowed to continue to operate in accordance with the provisions of the regulations in place before to the Decree.
The Decree also introduces (amending Article 190-quarter IFA) the administrative fine from EUR 500.00 to EUR 500,000.00, or up to 5% of turnover when this amount exceeds EUR 500,000.00, for crowdfunding service providers in breach of:
- requirements set out by the Regulation as referred to in Article 39(1) or by the related delegated acts and regulatory technical standards;
- national requirements to marketing communications that will be identified by Consob in its own regulation (see below).
The same sanctions will apply to subjects that provide crowdfunding services outside the scope of the Regulation, in the event that they fail to publish on their websites and to include in the information made available to customers regarding the service provided the following warning: “Questo servizio di crowdfunding non è soggetto ad autorizzazione o vigilanza da parte della Banca d’Italia o della Consob” (“This crowdfunding service is not subject to authorization or supervision by the Bank of Italy or Consob”).
As mentioned above, Consob is currently working – consultation closed on 17 March 2023 – on a draft regulation laying down implementing rules for the Legislative Decree on crowdfunding services for business, aimed at defining some detailed elements of the European regulation. In particular, the draft Consob regulation that was put out in consultation regulates the following aspects:
- Procedure for granting and withdrawing authorization;
- Definition of disclosure obligations for crowdfunding service providers;
- Definition of domestic regulations applicable to marketing communications (according to general criteria inspired by other financial sector regulations);
- Definition of additional obligations under the civil law regime.
Legália will continue to monitor future developments in crowdfunding matter; in the meantime, we remain available for clarification and assistance in relation to the subject of this NewsLetter and/or related topics.