Financial, MiFID II: information obligations of intermediaries, Consob Communication no. 0056318 of 1-3-2018
Recent regulatory developments
On 3 January 2018 the amendments made to the TUF by Legislative Decree no. 129 of 3 August 2017, with which the Directive 2014/65 / EU (so-called MiFID II) and the Delegated Directive (EU) 2017/593 (so-called Delegated Directive) and with which the domestic legislation was adapted to Regulation (EU) no. 600/2014 (c.d. MiFIR).
From the same date, the Delegated Regulations are also directly applicable in the Member States, containing provisions that complement and implement in detail the principles and provisions contained in the primary European sources, including, in particular, the Delegated Regulation (EU) 2017 / 565 (which “complements Directive 2014/65 / EU of the European Parliament and of the Council as regards the organizational requirements and conditions for the exercise of the activity of investment firms and the definitions of certain terms for the purposes of said directive”).
On 20 February 2018 the new Regulation containing the regulations concerning intermediaries came into force, adopted – following a public consultation process launched on 6 July 2017 – by Consob resolution no. 20307 of 15 February 2018.
At the same time, the previous Intermediaries Regulation was repealed, adopted with resolution no. 16190 of 29 October 2007.
The reference framework is complemented by level 3 measures adopted by ESMA [1].
The regulatory framework resulting from the adjustment of the domestic legal system to the European discipline of MiFID II matrix has significant impacts on the obligations of intermediaries.
In particular, the changes that have taken place require interventions on policies and on the procedural structure, in order to comply with the changes themselves.
In this regard, pursuant to Consob resolution no. 17297 of April 28, 2010, intermediaries are required to send, by March 31 of each year, a report (variously named according to the nature of the intermediary itself [2]), containing a representation of the procedures for the provision of services and investment and ancillary services and the distribution of financial products issued by insurance companies or banks (hereinafter referred to as the “Services Report”).
The attention of intermediaries is therefore drawn to the need for the measures identified to comply with the provisions of the MiFID II matrix legislation, in the relevant sections of the related scheme, when the “Report on services” to be carried out in 2018 is sent. , with specific reference to the following profiles:
a) product governance process; b) investment advice; c) assessment of adequacy and appropriateness; d) complex products and execution only; e) information to customers with particular regard to costs and charges; f) bundling practices; g) best execution; h) conflicts of interest; i) incentives; j) knowledge and skills requirements of the intermediary staff, including related agents, when advising clients on investments or providing clients with information regarding financial instruments, investment services or ancillary services.
In this regard, it is represented that, for the current year, the deadline for sending the “Report on services” is extended to 30 April 2018, so that intermediaries can take into account the most recent regulatory developments.
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The same needs described above also exist with reference to the subjects authorized for the collective management of savings.
In view of the fact that these managers can both carry out investment services (investment advice, portfolio management and, in the case of AIFM, receipt and transmission of orders), and market their own or third parties’ UCIs, the innovations introduced at the for the implementation of the MiFID II complex, also applicable to the same [3], require the preparation of interventions on their policies and procedures, in order to adapt to the changes themselves.
Therefore, the measures identified to comply with the requirements of the MiFID II regulation must be illustrated by the managers in the relevant sections of the “Report on the organizational structure” to be sent, pursuant to Consob resolution no. 17297 of April 28, 2010, by March 31 of each year.
As a consequence, the aforementioned document must be integrated into its contents, with respect to the scheme envisaged by the Bank of Italy Regulation of 19 January 2015, with reference to the profiles indicated above as applicable.
Similarly to the above for intermediaries other than managers, the deadline for sending the “Report on the organizational structure” [4] is extended for the current year to 30 April 2018.
The President Vicar
Anna Genovese
Note:
[1] With reference to investment services and accessories, reference is made to the following documents:
a) “Guidelines on complex debt instruments and structured deposits”, published by ESMA in Italian on 4 February 2016;
b) “Guidelines on the evaluation of knowledge and skills”, published by the ESMA in Italian on 22 March 2016;
c) “Guidelines on bundling practices”, published by ESMA in Italian on 11 July 2016; d) “Guidelines on the obligations of governance of products under MiFID II”, published by ESMA in Italian on 5 February 2018.
Consob has communicated to ESMA, giving notice on its web-site, to comply with the aforementioned Guidelines, integrating them in its supervisory practices;
e) “Questions and Answers on MiFID II and MiFIR investor protection and intermediaries topics” published by the ESMA and kept constantly updated.
The latest version has, to date, been updated on December 18, 2017.
[2] More precisely:
as for SIM, Italian banks, Poste Italiane S.p.A. and intermediary financial intermediaries registered in the register provided for by article 106 of the TU. banking, reference is made to the “Report on the methods of carrying out investment services and activities and ancillary services and the distribution of financial products issued by insurance companies or banks”, to be drawn up according to the ‘Annex II.1 of Consob resolution no. 17297 of 28 April 2010;
for EU investment firms with branches in Italy, EU banks with branches in Italy and companies from third countries (banks and investment firms), the reference is to the “Report on the procedures for carrying out services and investment and ancillary services and the distribution of financial products issued by insurance companies or banks “, to be drawn up according to the format set out in Annex II.13 of the resolution;
with regard to insurance companies, reference is made to the “Report on the methods of distribution of insurance financial products”, to be drawn up according to the format set out in Annex II.15 of the resolution;
and finally, to the stockbrokers registered in the single national role, the reference is to the “Report on the procedures for the performance of investment services and activities, also containing the description of the internal control activities performed in the previous calendar year as well as the organization chart study at December 31 of the previous year, with indication of the names of employees and collaborators “.
[3] As clarified during the last consultation regarding the Intermediaries Regulation, which has just ended, in the event that the manager lends (in addition to the collective management activity) one or more of the investment services to which he may be authorized, the direct application of all the rules of conduct envisaged by MiFID II; in the event that the manager carries out the sole marketing activity, the MiFID II derivation rules specifically referred to in Articles 107 and 109 of the new Intermediaries Regulation (in particular, on the subject of disclosure on financial instruments, product governance, will be applied) distributor) and requirements for experience and knowledge of personnel in contact with customers).
[4] With regard to the harmonized management companies operating in Italy through the establishment of branches (Article 108 of the new Intermediaries Regulation), reference is made to the relevant sections of the “Annual Report on the modalities of performance of the asset management business, services and of investment and ancillary services through its branches in Italy “, prepared in accordance with the format set out in Annex II.13 of Consob resolution no. 17297 of 28 April 2010.
03/02/2018
Source Consob
