Prepared by Fabrizio Cascinelli and Francesco Della Scala
On 22nd November 2023, the Bank of Italy has published a consultation paper on crowdfunding, named “Dispositions of the Bank of Italy implementing Article 4-sexies.1 of the TUF on European crowdfunding service providers for business”.
The consultation paper is addressed to banks, intermediaries under Article 106 of the TUB, payment institutions (IP), electronic money institutions (IMEL), SIM and specialized crowdfunding service providers; it includes provisions that complete the national crowdfunding regulatory framework, regulating specific aspects provided for in Article 4-sexies.1 of the TUF, which identified the Bank of Italy and Consob as the competent national authorities under Regulation (EU) 2020/1503 on European crowdfunding service providers for businesses (European Crowdfunding Regulation).
It is useful to mention that, pursuant to the European Regulation, starting from 11st November 2023, only crowdfunding services providers for businesses are authorized under the new European regulations and enrolled with the special register kept by ESMA can operate in Italy.
Specifically, the consultation paper concerns primarily the communications that all crowdfunding service providers must make to the Bank of Italy and Consob, designated as competent authorities.
First of all, it is envisaged that crowdfunding service providers authorized by the Bank of Italy (banks, Ips, IMELs and intermediaries pursuant to Article 106 of the TUB) must transmit to the Bank of Italy every year – within the 25th of January – periodic reports on the projects financed (as envisaged by Article 16(1) of the European Crowdfunding Regulation). This information must then be transmitted by the Bank of Italy to Consob and by the latter – as single point of contact – to ESMA.
In addition (pursuant to Article 15(3) of the European Crowdfunding Regulation), it is provided that such providers must promptly and jointly notify to the Bank of Italy and Consob the dates of the starting, interruption and restarting of crowdfunding services, as well as of any substantial change in the conditions of authorization (in line with what Consob already provides for providers authorized pursuant to its Regulation of the 1 June 2023).
With reference, on the other hand, to specialized providers of crowdfunding services authorized by Consob, there are certain disclosure obligations towards the Bank of Italy, aimed at enabling the Authority to carry out continuously supervisory activities.
These disclosure obligations concern (i) existing outsourcing agreements, (ii) the acquisition or increase of a shareholding that would result in reaching or exceeding the threshold of 20% of the capital or voting rights in the supplier, or that would result in the possibility of exercising control over the supplier, and (iii) the fit and proper assessment of corporate officers.
It’s possible to participate in the consultation until 22 January 2024.
For completeness, it should be noted that the European regulation on crowdfunding services of Regulation (EU) 2020/1503 and Directive (EU) 2020/1504 (as well as the related delegated acts) was implemented at the national level by the Legislative Decree No. 30 of 10 March 2023, which amended the TUF by identifying, among other things, the Bank of Italy and Consob as the competent national authorities on the matter, each according to its competences (Consob is the competent with regard to transparency and correct behavior, Bank of Italy is competent with regard to risk containment, capital stability and the sound and prudent management of intermediaries).
Coordination between the two authorities was achieved through a memorandum of understanding signed on 19 June 2023.
Consob – which is in charge of authorizing, as specialized crowdfunding service providers, SIM and crowdfunding service providers, having consulted the Bank of Italy – completed the process of adapting the national legislation to the European provisions through the “Regulation on crowdfunding services” adopted with Resolution No. 22720 of 1 June 2023 and in force since 12 June 2023. This new Regulation replaced the “Regulation on capital raising through online portals”, adopted with Consob Resolution No. 18592 of 26 June 2013.
This Regulation disciplines particular aspects of the procedure for granting and withdrawing authorizations, certain information obligations towards the competent authorities and the public, as well as marketing communications.
The Bank of Italy – which is in charge of authorizing banks, IPs, IMELs and intermediaries ex art. 106 of the TUB as crowdfunding service providers, after consulting Consob – published on 2 August 2023 the ‘Supervisory Guidelines on Specialised Crowdfunding Service Providers’ covering aspects of corporate governance, internal controls, suitability assessment of exponents, and due diligence obligations on project owners; these Guidelines are only addressed to specialized providers other than banks, SIMs, IPs, IMELs and intermediaries under article 106 of the TUB (for the latter, the specific provisions are unaffected).