MIFID II: Performing Investment Services and Activities by Institutions Based in Third Countries in Italy

The performance of investment services and activities by entities established in third countries in Italy is becoming an increasing concern among specialized operators for the obvious reason, which will be discussed hereinafter, of the close entry into force of the new law provided from Directive 2014/64/EU (“MiFID II”) and Regulation (EU) No. 600/2014 (“MiFIR” and, together with MiFID II, “MiFID II Regulations”).

In this perspective and in the process of implementation of MiFID II Regulations, the Legislative Decree No. 129 of 3 August 2017 amended Legislative Decree No. 58 of 24 February 1998 (“Consolidated Financial Law” – “TUF”), by including Article 28 (“Third-country firms other than banks”) and Article 29-ter TUF (“Third-country banks”) ^[1].

The new rules provide that the performance of investment services and activities in Italy, with or without accessory services, by investment firms and third-country banks (“Non-European Entity” or “Non-European Entities”) may be carried out through different strategies depending on the type of customers receiving the above-mentioned services and activities. In this regard, a specific distinction concerns retail clients and professional clients on request (“Retail Clients” and “Professional Clients on Request”) or qualified counterparts and professional clients (“Qualified Counterparts” and “Professional Clients”) ^[2] .

If, pursuant to Article 29-ter paragraph 4, TUF expects that the Bank of Italy, after consulting Consob, will regulate the specific conditions for issuing the authorization for the performance of investment services and activities by third-countries banks, it is well known that Consob has long been in the process of amending its regulations also in accordance with article 28, paragraph 4, TUF.

On 19 October 2017, Consob submitted to public consultation, with the document “Amendments to the Intermediary Rules on the functionality in Italy of Third-Country firms other than banks in adoption of Directive 2014/65/EU (Mifid II)”, the regulation on implementing rules of TUF on intermediaries, adopted by resolution No. 16190 of 29 October 2007 (the “Intermediary Rules”) ^[3].

The main duties of Consob in this respect concern: (i) the recognition of cross-border activity at client's initiative; and (ii) the terms and procedures required for the authorization for investment firms already authorized in third countries, which wish to operate in Italy through branches or under the freedom to provide services ^[4].

1. LIMITS TO THE ACTIVITY - CROSS-BORDER - CLIENT INITIATIVE

As known, the main objective of the MiFID II Regulations is to harmonize national provisions concerning certain specific sectors, including, inter alia, those related to the activities of financial intermediaries, and of the market, together with investor protection.

For this reason, for the first time, the European legislator has decided to intervene and regulate, within the same MiFID II Regulations, also the case of the performance of services or the conduct of investment activities in the Union by Non-European Entities “on the client's initiative” (“reverse-solicitation”).
To this end, the following principles are established:

• the possibility for persons established in the Union to receive, on their sole initiative, investment services by Non-European Entities remains unaffected;

• if the Non-European Entity provides services on the sole initiative of a person established in the Union, services are not considered to be provided in the territory of the Union;

• if the Non-European Entity seeks to procure customers or potential customers in the Union or promotes or publicizes investment services or activities along with ancillary services, the related services are not considered as being provided solely by the client.

With reference to the latter, it can be said that the investment service and activity are provided at the client's initiative if:

1. the request originates from a client's intuition not requested by the Non-European Entity;
2. the same client requires the service on the basis of communications containing a promotion or offering of financial instruments made by means of a general nature and aimed at the public or to a larger group or category of customers or potential customers (cf. Recital 85 of MiFID II).

Conversely, the investment service and activity are NOT provided at the client's initiative if he requires investment services or activities in response to a tailored communication from or on behalf of the Non-European Entity and provided that such invitations are aimed at influencing the client over a specific financial instrument or financial transaction.

The principles here referred to and inspired by MiFID II ^[5] have been implemented in our national system with the aforementioned amendments to Article 28 and Article 29-ter TUF. Apart from the hypothesis of performance of investment services and activities at customer's initiative, it is established that the provision of investment services and activities with or without ancillary services in Italy in respect of:

• Retail Clients and Professionals Clients on Request can only be made through a branch;
• Qualified Counterparts and Professional Clients:
  • may be made under the freedom to provide services if Title VIII MiFIR (e.g. Equivalence Decision sub paragraph 3) applies;
  • may only be carried out under the freedom to provide services in the absence of an Equivalence Decision, only after a specific authorization granted by the Italian supervisory authority, and as long as the international agreements set by law have been implemented.

2. CROSS-BORDER ACTIVITY FOR RETAIL CLIENTS OR PROFESSIONAL CLIENTS ON REQUEST

Functionality involving investment services and activities in Italy by Non-European Entities and addressed to Retail Clients and Professionals Clients on Request, as mentioned, require the establishment of a branch upon authorization to be submitted to the Italian supervisory authority (e.g. Consob or Bank of Italy).

The authorization is also required if the Non-European Entity, although it initially provided its business in Italy on the basis of a specific initiative of the Union's client, intends to proceed with the marketing of new product categories or investment services to the same client ^[6].

With specific reference to third-country investment firms, the content and documentation to be attached to the application for authorization are set out in the new Annex No. 1 of the Intermediary Rules in consultation.

When filing the authorization request, it must be attached, inter alia:

1. general information on the applicant investment firm, including a copy of the company documents and a written statement issued by the competent authority of the third country stating the investment services and activities and the ancillary services that the same firm is authorized to provide in the State where it is established;
2. information on the share capital (for example, the assets situation referred to a date not earlier than 60 days from the date of submission of the application);
3. shareholder information, e.g. the indication of the party exercising the control of the investment firm and the map of the group;
4. information about the management and control body, the persons who direct the business and the managers of the branch in Italy (for example, with reference to branch managers, personal data, curriculum vitae, reputable documentation and experience);
5. the information on the organization of the branch in Italy, the description of the planned activities for the three-year period, with particular reference to: (i) information on the types of operations envisaged; (ii) the type and geographical location of the “target” customers of the branch; (iii) marketing and promotional activities and agreements, including the types of promotional documents used; (iv) the organizational structure and internal control systems; (v) a description of the measures taken in terms of product governance; and (vi) a description of procedures relating to anti-money laundering;
6. financial information (for example, the previous financial statements [balance sheet and income statement] of the first three financial years).

3. CROSS-BORDER ACTIVITY WITH REGARD TO QUALIFIED COUNTERPARTIES OR PROFESSIONAL CLIENTS OF RIGHT

In the different scenario where a Non-European Entity intends to perform its activity in Italy with Qualified Counterparts and Professional Customers, it will also be permitted under freedom to provide services - without an application for authorization - according to the conditions outlined below. Article 28, paragraph 5, and Article 29-ter paragraph 5 TUF, by referring to the provisions of Articles 46 and following MiFIR, state that this may only be permitted if:

• the Non-European Entity is specifically registered in the Register of Third Country Enterprises held by the European Securities and Markets Authority (ESMA);
• the Non-European Entity is authorized in the jurisdiction where it has its administrative seat and its activity must comply with the rules of supervision of the same third country of origin;
• the European Commission has adopted its own specific decision to certify that the third country legal and supervisory regime ensures that authorized Non-European Entity comply with legally binding requirements on behavioral and prudential rules having equivalent effect to the provisions of MiFID II Regulations, Directive 2013/36/EU on Capital Requirements and the related implementing measures (“Equivalence Decision”);
• ESMA has concluded a cooperation agreement with the competent authorities of third countries whose legal and supervisory framework has been recognized as equivalent by the Commission in the terms of the preceding paragraph, also specifying:

- the mechanism for the exchange of information between ESMA and the competent authorities of the third country;

- the mechanism for timely communication to ESMA in the event that the competent authority of the third country considers that the Non-Community Entity subject to its supervision violates the conditions of its authorization;

- the procedures concerning the coordination of supervisory activities and on-site inspections.

4. CROSS-BORDER ACTIVITY OF THIRD COUNTRIES WITHOUT DECISION OF EQUIVALENCE

In the event that (i) the required Equivalence Decision has not been adopted by the Commission or (ii) in the event that the Equivalence Decision is no longer in force, the Non-European Entity may operate in Italy under freedom to provide services - therefore, without branches - only if specifically authorized by the Italian supervisory authorities.

With sole reference to investment firms in third countries, the Intermediary Rules in consultation provides for details of the content and documentation required for the application to be filed for the purpose of obtaining the authorization to operate on the territory of the Italian Republic in a regime of freedom to provide services.

Consob requires an informative and documentary set of investment information from third-country investment companies, which largely replicates what is already described in sub-paragraph No. 2, numbers 1 to 5. It is reasonable to assume that the same information will be required from third-country banks under the minor standardization of the Bank of Italy pursuant to Article 29-ter paragraph 4 TUF.

In addition, the version of the Intermediary Rules in consultation, in Article 19 (pre-examination of the application), requires Consob, after hearing the Bank of Italy, to make its views within 120 days from when the application has been received. However, these terms shall be suspended until stipulation of: (i) agreements between the national supervisory authorities and the supervisory and vigilance authorities of third countries of investment firms; and (ii) tax agreements between Italy and the country of origin of the same investment firms.

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^[1] Italian Legislative Decree No. 129 of 3 August 2017 “Implementation of Directive 2014/65/EU of the European Parliament and Council, of 15 May 2014, on markets in financial instruments, amending Directive 2002/92/EC and Directive 2011/61/EU, as amended by Directive 2016/1034/EU of the European Parliament and Council, of 23 June 2016, and adapting national legislation to the provisions of Regulation (EU) 648/2012, as amended by Regulation (EU) 2016/1033 of the European Parliament and Council, of 23 June 2016” (Italian Official Gazette General Series No. 198 of 25 August 2017). Measure entered into force on 26 August 2017.

^[2] Refer to the definition of A. “Professional Client”, Article 6, paragraphs 2-quinquies and 2-sexies TUF (Italian Consolidated Law on Finance); B. “Retail Clients”, Article 26 of the Intermediary Rules; C. “Eligible Counterparties”, Article 6, paragraph 2-quater letter d) TUF; D. “Third-country firm” within the meaning of Article 1, paragraph 1, letter (g) TUF: a firm which does not have its registered office or general head office in the Union, whose business is the same as that of an EU investment firm or an EU bank providing investment services or activities.

^[3] On 6 July 2017, the Authority set up for consultation “the Amendments to the Intermediary Rules concerning the provisions for the protection of investors and the skills and knowledge required of intermediary personnel, in the transposition of Directive 2014/65/EU (MiFID II)”. Subsequently, on 31 July 2017, Consob set up for consultation “the Amendments to the Intermediary Rules on SIM (brokerage companies) licensing procedures and the entry of EU investment firms in Italy, and the rules applicable to operators in the transposition of Directive 2014/65/EU (MiFID II)".

^[4] After consulting with the Bank of Italy, Consob will continue to be responsible for the assessment of authorization requests relating to third-country investment firms; the Bank of Italy, on its part, after consulting with Consob and only if the same conditions are those set for investment firms, will be responsible for the authorization of banks established in third countries which intend to proceed with the offer of services and investment activities in Italy.

^[5] MiFID II - Article 39 (Establishment of a branch); MiFIR - Title VIII - (Provision of services by third-country firms without a branch).

^[6] MiFID II - Article 42 (Provision of services at the exclusive initiative of the client) - Member States shall ensure that, where a retail or professional client within the meaning of Annex II, Section II, established or situated in the Union, initiates at its own exclusive initiative the provision of an investment service or activity by a third-country firm, the requirement for authorization under Article 39 shall not apply to the provision of that service or activity by the third-country firm to that person, including a relationship specifically relating to the provision of that service or activity. An initiative by such clients shall not entitle the third-country firm to market new categories of investment products or services to such clients if not through the branch, pursuant to national law.