Provisions for the Registration and Management of the Register of Microcredit Operators

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-1 DECISION OF THE BANK OF ITALY Provisions for the Registration and Management of the Register of Microcredit Operators

THE BANK OF ITALY HAVING REGARD to Article 111 of Legislative Decree No. 385 of 1 September 1993 (Consolidated Act of Banking and Credit Laws - TUB), which regulates the characteristics and operations of entities granting financing in the form of microcredit, providing for their registration in a specific register; HAVING REGARD to Article 113 of the TUB, which temporarily entrusts the Bank of Italy with the maintenance of the register provided for in Article 111 and the supervision of compliance by registered entities with the regulations to which they are subject, also attributing to the Bank of Italy the power to request the communication of data and information, the transmission of acts and documents, and to carry out inspections; HAVING REGARD to Article 15 of the Decree of the Minister of Economy and Finance of 17 October 2014, No. 176 (Regulation of microcredit, implementing Article 111, paragraph 5, of Legislative Decree 1 September 1993, No. 385), published in the Official Gazette on 1 December 2014, which delegates to the Bank of Italy the task of regulating methods, deadlines, and procedures with reference to the registration and management of the register referred to in the aforementioned Article 111, including the declaration of forfeiture of the corporate representative in case of inertia of the microcredit operator and the communication of data and information by registered entities; HEREBY ISSUES the attached Provisions for the Registration and Management of the Register of Microcredit Operators.

Rome, 3 June 2015 THE GOVERNOR Ignazio Visco

Provisions for the Registration and Management of the Register of Microcredit Operators

TITLE I Definitions Article 1 (Definitions)

1. For the purposes of this regulation, the following are defined: – “TUB”, Legislative Decree 1 September 1993, No. 385 "Consolidated Act of Banking and Credit Laws"; – “Regulation”, the Decree of the Minister of Economy and Finance, 17 October 2014, No. 176, containing provisions on microcredit operators referred to in Articles 111 and 113 of the Consolidated Act; – “register”, the register provided for in Article 111 of the Consolidated Act; – “microcredit operators”, the entities registered in the register; – “microcredit activity”, the activity of granting financing carried out by microcredit operators in compliance with the provisions of the Regulation; – “significant shareholdings”, shareholdings exceeding 10 percent of the share capital with voting rights in a microcredit operator.
2. The provisions of this decision that refer to the administrative body apply to the sole administrator, the board of directors, and the management board.
3. The provisions of this decision that refer to the supervisory body apply to the board of auditors, the sole auditor, the supervisory board, and the committee for the control of management.

TITLE II Requirements for Corporate Representatives and Capital Participants Article 2 (Integrity and Professionalism Requirements for Corporate Representatives)

1. Pursuant to Article 111, paragraph 2, letter c), of the TUB, subjects performing functions of administration, direction, and control at microcredit operators must possess the integrity and professionalism requirements provided for by the Regulation.
2. The verification of the possession of requirements is conducted, in the case of collegial bodies, by the body of which the corporate representative is a member, based on documentation proving the possession of the same (see Annex 1). In the case of monocratic bodies, the possession of requirements is attested by a self-declaration by the interested subject, which confirms in detail the presence of the requirements required by Article 8 of the Regulation.
3. In the case of an evaluation conducted by a collegial body, the verification is carried out in a specific meeting during which the examination is conducted individually for each of the interested subjects and with their respective abstention. The relevant resolution states the premises of the evaluations performed. The documentation acquired for this purpose is kept at the company for a period of ten years from the date of the resolution. Within thirty days, operators transmit a copy of the self-declaration or the resolution with which the existence of the integrity and professionalism requirements prescribed for the subjects in question is ascertained. The Bank of Italy may request the exhibition of the documentation examined for the verification of the prescribed requirements.
4. For substitute auditors, the ascertainment of integrity and professionalism requirements is carried out at the time of appointment. When a subject changes position within the same intermediary, where identical requirements are provided, no new ascertainment is necessary.
5. Regarding the ascertainment of the professionalism requirement, the minutes of the resolutions adopted by the competent corporate bodies, or the self-declaration of the interested party, indicate the activities carried out by each subject that are relevant for the ascertainment and the periods to which they refer. In the case of monocratic bodies, the self-declaration of the interested party is accompanied by a curriculum vitae of the subject holding the office.
6. Regarding the ascertainment of the integrity requirement, from the minutes, or from the self-declaration of the interested party, it must appear, with reference to each subject, the precise indication of the documents attesting to the existence of the requirement. In the minutes, or in the self-declaration, any ongoing proceedings for crimes that could affect the possession of the requirement in question are mentioned, if known to the interested party.
7. It is left to the autonomous evaluation of the competent body to choose not to carry out verifications regarding the integrity requirements for representatives holding functions of administration, direction, and control in intermediaries subject to the supervision of the Bank of Italy. In this case, the competent body indicates the offices held by corporate representatives at other supervised intermediaries.
8. In the case of collegial bodies, representatives who find themselves in situations entailing forfeiture or suspension from office communicate these circumstances promptly to the competent body so that it can adopt the necessary measures. The competent body, when it has ascertained the lack of the requirements referred to in paragraph 1, declares the forfeiture or suspension of the interested party from the office within thirty days from the verification, giving immediate communication to the Bank of Italy.
9. In the case of a monocratic body, representatives who find themselves in situations entailing forfeiture or suspension from office communicate these circumstances promptly to the shareholders' meeting, which within thirty days from the communication declares the forfeiture or suspension of the interested party from the office and takes the most suitable measures, giving in any case immediate communication to the Bank of Italy.
10. In case of inertia of the competent corporate bodies, forfeiture is pronounced by the Bank of Italy.
11. In case of replacement of corporate bodies, the verification of requirements is carried out as indicated in this article.
12. When the representative incurs one of the impeditive situations referred to in Article 10, paragraph 1, letters a), b), and c), of the Regulation, what is established by paragraphs 2, 3, 4, 5, and 6 of the same Article 10 of the Regulation applies.

Article 3 (Integrity Requirements for Capital Participants)

1. Anyone who possesses, directly or through controlled companies, fiduciary companies, or through an intermediary person, significant shareholdings in a microcredit operator, or controls it, is required to possess the integrity requirements provided for by the Regulation. The definition of control provided for in Article 23 of the TUB applies.
2. The verification of requirements is carried out by the administrative body of the microcredit operator, which is responsible for it. The evaluation is carried out based on adequate investigation. The outcome of the verification results from the minutes of the meeting of the administrative body, if collegial, or from a specific declaration of the sole administrator; when the lack of integrity requirements is ascertained, a copy of the minutes, or of the declaration, is transmitted immediately to the Bank of Italy.
3. If the participant is a natural person, for the verification of requirements, the microcredit operator may refer to the documentation, by way of example, indicated in Annex No. 2.
4. If the capital participant is a legal entity, the ascertainment concerns the members of the administrative body and the general manager of the company, or subjects holding equivalent offices. If the participating subject is a financial intermediary supervised by the Bank of Italy, the competent corporate bodies of the microcredit operator may, within the scope of their autonomous evaluation, refer to requirements already ascertained by the intermediary.
5. The documentation acquired for this purpose is kept at the company for a period of ten years from the date of the resolution for which it was used. From the minutes, or from the declaration of the sole administrator, it appears, with reference to each interested party, the precise indication of the documents taken into consideration to attest to the existence of the requirement. In the minutes, or in the declaration, any ongoing proceedings for crimes that could affect the possession of the requirement in question are mentioned, if known to the interested party.
6. When holders of significant shareholdings subsequently find themselves in one of the situations entailing the loss of the integrity requirement, they communicate this promptly to the microcredit operator, which proceeds to inform the Bank of Italy.

TITLE III Registration of Microcredit Operators Article 4 (Application for Registration in the Register)

1. Companies wishing to apply for registration in the register submit the application to the Bank of Italy within sixty days from the registration of the company in the business register, if newly constituted, or from the registration in the business register of the statutory modifications, if already constituted, without prejudice to the deadlines established by Article 10, paragraph 4, letter e), of Legislative Decree 13 August 2010, No. 141.
2. The application for registration, drawn up according to the scheme reported in Annex No. 3 and signed by the legal representative of the company, indicates: a) the company name, legal form, legal and administrative headquarters (if different from the legal headquarters), VAT ID, PEC address, as well as the full details of the legal representative; b) the type of microcredit activity to be exercised pursuant to Title I, Title II, and Art. 16 of the Regulation and for which registration is requested, as well as the auxiliary assistance and monitoring services to be carried out directly or through third parties pursuant to Article 3, paragraph 1, or Article 5, paragraph 5, of the Regulation; c) the subscribed and paid-in share capital.
3. The application for registration is accompanied by the following documentation: a) certificate issued by the Business Register Office or substitute declaration pursuant to Article 46 of D.P.R. 28 December 2000, No. 445, attesting to the registration of the company in the business register or the registration of statutory modifications; b) copy of the deed of incorporation and the company statutes declared in force by the legal representative of the company; c) for newly constituted companies:

• attestation of the payment of share capital, by means of an account balance extract issued by the bank at which the payment was made no earlier than five days from the sending of the application;
• attestation of the existence of the same capital, made by the supervisory body if constituted or, in its absence, by the administrative body;
• in the presence of contributions in kind, the report on the estimation or valuation of contributions in kind pursuant to the civil law discipline applicable to the company; d) in the case of already operating companies wishing to exercise the microcredit activity:
• an estimation report, carried out by a subject registered in the register of statutory auditors, referred to a date not earlier than three months from the day of submission of the application for registration, from which the existence and amount of the subscribed and paid-in share capital result; the appraisal is carried out by experts, registered in the register of statutory auditors, designated by the company;
• a resolution of the management body from which the detail of existing financing results and which determines which of them will be brought within the types of microcredit provided for by the Regulation as having the characteristics indicated therein; e) list of subjects who hold, directly or indirectly, that is through controlled companies, fiduciary companies, or through an intermediary person, a significant participation in the share capital of the company, with the indication of their respective participation quotas in absolute value and in percentage terms; for indirect participations, the subjects through which the participation is held are indicated (see Annex No. 4); f) copy of the minutes of the meeting of the administrative body, or the declaration of the sole administrator, referred to in Article 3, paragraph 2; g) nominal list, with indication of full details, of the sole administrator or members of the administrative body, and of the supervisory body if constituted, as well as of any managing directors, general managers, and subjects performing equivalent functions; h) copy of the minutes of the competent meeting or the self-declaration referred to in Article 2; i) a program, drawn up according to the scheme reported in Annex No. 5, which illustrates in detail: 1) corporate strategies, development lines of the activity, and growth forecasts of operations; 2) characteristics of the financing the company intends to grant regarding economic conditions, purposes, and target clientele; 3) auxiliary assistance and monitoring services intended to be provided, specifying the content and methods of provision and any previous experience in providing such services; in the case provided for in Article 3, paragraph 2, of the Regulation, the specialized subjects to be used, the methods of control over their operations, and their possible accreditation at public or private bodies; 4) accessory and instrumental activities, different from the auxiliary services referred to in point 3), that the company intends to carry out; 5) organizational measures activated (organizational chart, job descriptions, and control functions), with particular attention to mechanisms aimed at ensuring the effectiveness and autonomy of internal control activity; 6) the credit granting process, with particular reference to the methods of evaluating beneficiaries and the financed project and monitoring the granted financing, with the indication of the structures involved and the relative reporting destined for corporate bodies; 7) the possible use of the subjects referred to in Article 3, paragraph 2, of the Regulation for the promotion and placement of financing contracts; j) for already constituted companies, the last approved balance sheet and an updated accounting situation signed by the administrative body and the supervisory body if constituted; k) copy of the identity document of the person signing the application for registration.

Article 5 (Processing of Applications)

1. The Bank of Italy, based on the outcomes of the verifications carried out regarding the existence of requirements for the registration of operators in the register, adopts the registration decision or rejects the request within one hundred and twenty days from the date of receipt of the application, accompanied by the required documentation. The responsible organizational unit is the Constitutions and Crisis Management Service.

TITLE IV Communication Obligations Article 6 (Communications on Corporate Representatives and Significant Shareholdings)

1. Microcredit operators communicate to the Bank of Italy any modification of the composition of corporate bodies as well as the replacement of the general manager or those holding offices with functions equivalent to that of general manager. The communication is carried out with the methods and within the deadlines provided for by the Bank of Italy's discipline for communications of corporate bodies of financial intermediaries registered in the register provided for in Article 106 of the TUB.
2. If a participation in an operator, even held through controlled companies, fiduciary companies, or through an intermediary person, exceeds 10 percent of the share capital with voting rights, or entails control, operators communicate this to the Bank of Italy within thirty days from when they become aware of it (see Annex No. 4). The definition of control provided for in Article 23 of the TUB applies.

Article 7 (Communications by Registered Subjects)

1. Microcredit operators promptly communicate to the Bank of Italy modifications concerning: a) the legal form; b) the company name, legal and administrative headquarters (if different from the legal one), and PEC address; c) the statutory clause relating to the amount of share capital; d) the corporate object; e) the microcredit activities exercised and auxiliary services provided; f) the legal representative; g) the tax code;
2. Microcredit operators send to the Bank of Italy:

• the annual balance sheet, complete with related attachments, within thirty days from its approval, accompanied by the minutes of the shareholders' meeting of approval;
• a communication on any variations, compared to the activity program communicated at the time of registration, of operations and organizational measures, according to the scheme of Annex 5;
• periodic reports, on a semi-annual basis, on their asset, economic, and financial situation, on financing granted, with the methods and within the deadlines provided by the Bank of Italy;
• an annual report relating to the performance, also through third parties, of auxiliary assistance and monitoring services provided;
• the quarterly report of interest rates applied to microcredit operations for the purpose of detecting average effective global rates pursuant to Law 7 March 1996, No. 108, in the cases and according to what is provided by the Bank of Italy's discipline.

TITLE V Deregistration from the Register Article 8 (Deregistration at the Request of the Party)

1. The application for deregistration from the register, drawn up according to the scheme reported in Annex No. 6 and signed by the legal representative (or liquidator or trustee), is sent to the Bank of Italy within one hundred and twenty days from the occurrence of the causes underlying the request.
2. The application indicates the reasons for the request.

Article 9 (Ex Officio Measures)

1. In the cases referred to in Article 113, paragraphs 2 and 3, of the TUB, as well as in Article 2, paragraph 11, of these provisions, the procedures are regulated by the Bank of Italy Regulation of 25 June 2008. The responsible organizational unit is the Financial Intermediaries Supervision Service.

TITLE VI Transitional and Final Provisions Article 10 (Transitional and Final Provisions)

1. Microcredit operators indicate in acts and correspondence the registration number in the register.
2. Microcredit operators invite their representatives to elect domicile at the legal headquarters of the intermediary for all acts related to the office, also in accordance with and for the effects of the provisions of the TUB.

ANNEXES ANNEX NO. 1 DOCUMENTATION ACQUIRABLE IN THE CONTEXT OF VERIFICATION OF CORPORATE REPRESENTATIVE REQUIREMENTS ANNEX NO. 2 DOCUMENTATION ACQUIRABLE IN THE CONTEXT OF VERIFICATION OF PARTICIPANT REQUIREMENTS ANNEX NO. 3 APPLICATION FOR REGISTRATION OF MICROCREDIT OPERATORS ANNEX NO. 4 LIST OF CAPITAL PARTICIPANTS ANNEX NO. 5 ACTIVITY PROGRAM ANNEX NO. 6 DEREGISTRATION FORM (CAN)

Annex No. 1 VERIFICATION OF CORPORATE REPRESENTATIVE REQUIREMENTS

1. Documentation relating to the verification of integrity requirements for corporate representatives A) Italian subjects or subjects with citizenship in an EU State

1. general certificate of the criminal record;
2. certificate of pending charges;
3. substitute declaration by the interested subject from which it appears that the same has not received criminal convictions or other sanctioning measures in foreign states for facts corresponding to those that would entail, according to Italian law, the loss of integrity requirements or from which criminal convictions and/or sanctioning measures received in foreign states result. B) Extra-EU subjects not authorized to stay in Italy
4. Certification issued by the competent authority of the state of residence from which it appears that the interested subject has not been the recipient of measures corresponding to those that would entail the loss of integrity requirements provided for by the Decree of the Minister of Economy and Finance of 17 October 2014, No. 176. If the legislation of the state of residence does not provide for the issuance of the certificates in question, each interested party must produce a substitute declaration of the act of notoriety pursuant to Art. 47 of D.P.R. 28 December 2000, No. 445;
5. a declaration in which the interested subject attests that they have not been the recipient in states other than that of residence of measures corresponding to those that would entail the loss of integrity requirements provided for by the Decree of the Minister of Economy and Finance of 17 October 2014, No. 176. C) Extra-EU subjects authorized to stay in Italy
6. The documentation sub A);
7. the documentation sub B), limited to point 1. In such cases, the certification is issued by the competent authority of the state of citizenship.

2. Documentation relating to the professionalism requirements of corporate representatives A) Members of the administrative body and general manager

1. curriculum vitae signed by the interested party;
2. declaration of the company, society, or entity of origin;
3. statutes/balance sheets of the company or society of origin;
4. certifications of university bodies/attestations of teaching activities. B) Members of the supervisory body
5. certificate attesting to registration in the register of statutory auditors.

3. Requirements of representatives: substitute declarations The D.P.R. 28 December 2000, No. 445, containing the Consolidated Act of legislative and regulatory provisions on administrative documentation, has recognized the possibility of availing oneself of the substitute declarations governed therein in the context of...