[Newsflash n. 66]
During the period of application of the legislative decree n. 129 of 2017, implementing EU Directive 2014/65/EU (“MiFID II”) and EU Regulation 2014/600/EU (“MiFIR”) in the Italian legal system, national Supervisory Authorities spotted certain issues in the transposing legislation and reported them to the Ministry of Finance (“MEF”).
Following a public consultation launched by MEF, the Italian Council of Ministers approved the legislative decree n.165/2019 (“Corrective Decree”), which introduces additional and corrective measures (mainly dealing with organizational and sanctioning framework) to the Italian Financial Act (“TUF”) as previously amended to implement MiFID II.
The amendments introduced by the Corrective Decree, published in the Italian Official Journal n. 6 of 9 January 2020, will enter into force on 24 January 2020.
The key amendments can be summarized as follows:
(1) Repealing of KID filing obligation
The Corrective Decree repeals the obligation of ex-ante notification of KID to CONSOB by the PRIIP manufacturer or the person selling a PRIIP (article 1.3 of the Corrective Decree that repeals article 4-decies of TUF). Such provision balances the need to contain charges for supervised entities with the need to maintain adequate levels of supervision. During a transitional period of 180 days from the entry into force of the Decree, CONSOB will monitor the effect of this measure and will establish alternative methods to exercise its supervisory activity on KID. During such period, the current provisions of the TUF and the related secondary legislation will continue to apply.
(2) Supervisory powers
The Decree :
- specifies the scope and related supervisory powers of CONSOB and IVASS in the field of PRIIPs, which also include Insurance Based Investment Products (“IBIP”) (article 1 of the Corrective Decree that modifies article 4- sexies of TUF);
- specifies the supervisory powers of the Financial Advisors Supervisory Body (“OCF”) in connection with the distribution of IBIP by financial advisors (article 2.3 of the Corrective Decree that introduces the paragraph 2-quater to article 25-ter of TUF);
- extends Conosb’s powers towards managers of a trading venue, also to systematic internalisers (article 3.2 of the Corrective Decree that introduces paragraph 1-bis of article 66-quater of the TUF)
- implements MiFID II provisions allowing a transitional exemption from compliance with the clearing obligations and the risk mitigation techniques (exchange of collateral) for C6 energy derivative contracts (article 8.2 of the Corrective Decree).
(3) Off-site offer of financial instruments
- allows independent financial advisors and financial advisory firms to provide investment advisory services in remote (article 2.7 of the Corrective Decree that modifies article 32 of TUF);
- specifies that financial advisors authorized to off-site offer are subject to the same conduct rules and supervisory powers of branches (article 2.5 of the Corrective Decree that modifies article 31 of TUF);
- specifies that off-site offers, employed by EU investment firms, shall be carried out by tied agents not only when the services are performed by a permanent establishment in Italy but also in case of investment services under the freedom to provide services (article 2.5 of the Corrective Decree that modifies article 31 of TUF);
- clarifies that also independent financial advisors and financial advisory firms are under the obligation to join the Alternative Dispute Resolution system established by CONSOB (article 2.8 of the Corrective Decree that modifies article 32-ter of TUF).
The Decree specifies that managers of crowdfunding platform are under the obligation to subscribe a professional liability insurance policy in order to grant protection to their customers, excluding the obligation to enter into compensation schemes (article 2.10 of the Corrective Decree that modifies article 50-quinquies of TUF).
Please do not hesitate to contact us should you need any further clarification on the above and related topics.