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New provisions on the ownership structure of banks and other intermediaries

29/07/2022

On 26 July 2022, following the relevant consultations opened on 6 April and concluded on 6 May 2022, the Bank of Italy published the new provisions on the ownership structures of banks and other intermediaries (hereinafter, for the sake of brevity, the "Provisions").

In particular, the Provisions comply with the European reference standard (i.e. CRD, MiFID, UCITS, AIFMD), fully implement the Joint Guidelines of EBA, ESMA and EIOPA on ownership structures and take into account, inter alia, the division of supervisory tasks between the Bank of Italy and the European Central Bank under the Single Supervisory Mechanism.

In this regard, the Provisions, in updating the regulatory legislation relating to the authorisation to acquire or increase qualifying holdings in banks, financial intermediaries pursuant to art. 106 of D.Lgs. 385/93, electronic money institutions (IMEL), payment institutions (IP), SIM, SGR, SICAV and SICAF, are intended to prevent the acquisition[1] or holding of qualifying holdings from adversely affecting the sound and prudent management of the supervised entities in question (hereinafter, for the sake of brevity, the "Intermediaries").

In this perspective, therefore, there are obligations of prior authorisation to the acquisition and communication in relation to qualifying holdings. In particular, the Bank of Italy will have to take into account and evaluate aspects such as: the reputation of the potential purchaser; requirements of good repute, fairness, professionalism and competence of the corporate representatives that would be established as a result of the acquisition; the financial soundness of the proposed acquirer; the ability of the intermediary to comply with the rules governing its business even after the acquisition; the suitability of the group structure of the acquirer to allow the effective exercise of supervision; the absence of any suspicion of money laundering or terrorist financing linked to the acquisition operation.

The Provisions, which - unless the request for authorisation procedures has been submitted before that date - will apply from the next 1 January 2023, also govern (i) the criteria and arrangements for the calculation of qualifying holdings; (ii) the assumptions of significant influence and the involuntary acquisition of a qualifying holding; (iii) the assumptions and indices relating to concerted shares; (iv) procedures and assessments of plans to acquire or increase qualifying holdings and (v) communications on holdings.

Finally, it should be pointed out that, in view of the entry into force of the Provisions, from 1 January 2023 are or remain repealed certain regulatory provisions issued by the Bank of Italy as well as the resolutions adopted by the ICRC and the decrees issued as a matter of urgency by the Minister of Economy and Finance on the ownership structure of intermediaries shall continue to apply after 1 January 2023 only in respect of applications for authorisation to acquire or increase qualifying holdings submitted before that date.

Finally, it is understood that the Intermediaries will have the obligation to comply with the provisions of the Provisions also when the new constitution and in the related authorization procedure before the Bank of Italy.

As stated above, the Provisions apply from 1 January 2023, unless the application for authorisation procedures has been submitted before that date.

 

[1] Participations which give, directly or indirectly, at least 10% of the voting rights or capital of the supervised undertaking or which allow to exercise a significant influence on the management of the undertaking, within the meaning of Article 4, paragraph 1, paragraph 36, of the CRR, as well as the shareholdings that enable control over the undertaking to be exercised. In this respect, it should be recalled that an entity which is not identified as a candidate indirect acquirer of a qualifying holding in the supervised undertaking on the basis of the control criterion may nevertheless be identified as a candidate indirect acquirer of a qualifying participation on the basis of the multiplier of participation percentages along the participatory chain. In particular, upon completion of the calculation, the candidate indirect purchaser is considered to be the person for whom the product is equal to or greater than 10%.

Authors

Portrait ofAndrea Arcangeli
Andrea Arcangeli
Partner
Rome
Portrait ofAlfredo Gravagnuolo
Alfredo Gravagnuolo
Senior Associate
Rome