Bank of Italy Measures Implementing Article 4-sexies.1 of the TUF Regarding Crowdfunding Service Providers for Enterprises

The present document is consistent with the original contained in the archives of the Bank of Italy Digitally signed by Legal Headquarters Via Nazionale, 91 - P.O. Box 2484 - 00100 Rome - Paid-in Capital Euro 156,000.00 Tel. 06/47921 - telex 630045 BANKIT - VAT ID 00950501007 - www.bancaditalia.it

DECISION OF THE BANK OF ITALY
MEASURES OF THE BANK OF ITALY IMPLEMENTING ARTICLE 4-SEXIES.1 OF THE TUF IN MATTER OF CROWDFUNDING SERVICE PROVIDERS FOR ENTERPRISES

THE BANK OF ITALY
HAVING REGARD to Legislative Decree No. 58 of 24 February 1998, containing the consolidated text of provisions on financial intermediation (“TUF”); HAVING REGARD to Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020 on European crowdfunding service providers for businesses, amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937 (“Regulation (EU) 2020/1503”); HAVING REGARD to Article 4-sexies.1 of the TUF, which identifies Consob and the Bank of Italy as the competent national authorities responsible for carrying out the functions and tasks provided for by Regulation (EU) 2020/1503; CONSIDERING that, pursuant to Article 4-sexies.1, paragraph 10, of the TUF, the Bank of Italy, with reference to the matters indicated in the same Article 4-sexies.1, paragraph 6, of the TUF, exercises regulatory powers by acquiring the opinion of Consob; CONSIDERING the need to complete the national legislation transposing the European provisions contained in Regulation (EU) 2020/1503 and the regulatory and implementing technical standards in the matters that the TUF assigns to the secondary legislation of the Bank of Italy; EVALUATING the observation received in response to the consultation document on the Draft Measures implementing Article 4-sexies.1 of the TUF in matter of crowdfunding service providers for enterprises published on 22 November 2023; HEARING Consob pursuant to Article 4-sexies.1, paragraph 10, of the TUF, ISSUES the attached Measures implementing Article 4-sexies.1 of the TUF in matter of crowdfunding service providers for enterprises. This decision is published in the Official Gazette of the Italian Republic and enters into force 15 days after publication; it is also published on the website of the Bank of Italy.

From the entry into force of these Measures, paragraph 2.2 of the Bank of Italy’s Supervisory Guidelines on corporate governance, internal controls, suitability of executives and due diligence on project holders, relating to the “Assessment of the suitability of executives” no longer applies, as it is replaced by Chapter II, paragraph 3, of the Measures. Rome, The Governor 6 May 2024 Fabio Panetta

MEASURES OF THE BANK OF ITALY IMPLEMENTING
ARTICLE 4-SEXIES.1 OF THE TUF IN MATTER OF CROWDFUNDING
SERVICE PROVIDERS FOR ENTERPRISES

Summary
CHAPTER I - GENERAL PROVISIONS AND SCOPE OF APPLICATION .........................................1

1. Premise ..................................................................................................................................1
2. Legal Sources .......................................................................................................................2
3. Definitions................................................................................................................................2
4. Addressees................................................................................................................................3
5. Administrative Procedures .................................................................................................3
   CHAPTER II – INFORMATIONAL OBLIGATIONS OF THE CROWDFUNDING SERVICE PROVIDER TOWARDS
   THE COMPETENT AUTHORITIES...................................................................................5
6. Communications to the Competent Authorities ..............................................................................5
7. Shareholders of specialized crowdfunding service providers...................5
8. Corporate officers of specialized crowdfunding service providers.........................6

CHAPTER I
GENERAL PROVISIONS AND SCOPE OF APPLICATION

1. Premise
   Crowdfunding services for enterprises can be provided by supervised intermediaries (banks, intermediaries registered in the roll provided for by Article 106 of the Consolidated Banking Act, payment institutions, electronic money institutions, and SIMs) or by specialized entities (so-called “specialized crowdfunding service providers”), subject to authorization by the competent authorities (1). The provision of crowdfunding services for enterprises is governed by Regulation (EU) 2020/1503 (2) and the regulatory and implementing technical standards (regulatory technical standard – RTS and implementing technical standard – ITS) adopted by the European Commission on the proposal of the European Banking Authority (EBA) and the European Securities and Markets Authority (ESMA) (3). At the national level, Legislative Decree No. 30 of 10 March 2023, amending Legislative Decree No. 58 of 24 February 1998 (TUF), in implementation of Regulation (EU) 2020/1503 has, inter alia, identified the Bank of Italy and Consob as the competent authorities for the exercise of licensing powers, as well as – according to the division of powers provided by the TUF – regulatory, supervisory, and sanctioning powers over crowdfunding service providers. Coordination between the Authorities is achieved through a memorandum of understanding (4). The discipline is integrated by implementing provisions issued – within the limits permitted by directly applicable European norms – by the Bank of Italy and Consob, according to their respective competences. In particular, reference is made to the Consob Regulation on crowdfunding services (5), which regulates particular aspects of the authorization and revocation procedure for specialized crowdfunding service providers and SIMs, certain informational obligations towards the competent Authorities and towards the public, as well as marketing communications.

(1) The Bank of Italy, having heard Consob, is competent for issuing authorization to banks, payment institutions, electronic money institutions, and financial intermediaries ex Article 106 of the Consolidated Banking Act; Consob, having heard the Bank of Italy, is competent for issuing authorization to SIMs and specialized crowdfunding service providers. (2) The Regulation is applicable from 10 November 2021. (3) The RTS and ITS issued in implementation of Regulation (EU) 2020/1503 regulate certain aspects regarding: individual management of loan portfolios (Article 6, paragraph 7, of Regulation (EU) 2020/1503), handling of complaints (Article 7, paragraph 5, of Regulation (EU) 2020/1503), conflicts of interest (Article 8, paragraph 7, of Regulation (EU) 2020/1503), authorization as a crowdfunding service provider (Article 12, paragraph 16, of Regulation (EU) 2020/1503), obligations to communicate with authorities (Article 16, paragraph 3, of Regulation (EU) 2020/1503), information to clients (Article 19, paragraph 7 of Regulation (EU) 2020/1503), publication of default rates (Article 20, paragraph 3, of Regulation (EU) 2020/1503), entry tests verifying knowledge and simulation of the ability to sustain losses (Article 21, paragraph 8, of Regulation (EU) 2020/1503), sheet containing key investment information (Article 23, paragraph 16, of Regulation (EU) 2020/1503), publication of national provisions regarding marketing prescriptions (Article 28, paragraph 5, of Regulation (EU) 2020/1503), cooperation between competent authorities (Article 31, paragraphs 8 and 9, of Regulation (EU) 2020/1503), and with ESMA (Article 32, paragraph 4, of Regulation (EU) 2020/1503). (4) See Memorandum of Understanding between the Bank of Italy and Consob on crowdfunding adopted pursuant to Article 4-sexies.1, paragraph 7, of the TUF. (5) See Consob Resolution No. 22720 of 1 June 2023. The Regulation implements Articles 4-sexies.1 and 100-ter of the TUF.

Furthermore, the Supervisory Guidelines published by the Bank of Italy on corporate governance, internal controls, suitability of executives, and due diligence on project holders are relevant.
Regarding prudential reporting by specialized crowdfunding service providers, reference is made to Bank of Italy Circular No. 286 of 17 December 2013.
These Measures set rules on the informational obligations of crowdfunding service providers towards the Competent Authorities.
2. Legal Sources
The matter is regulated by:

• Regulation (EU) 2020/1503 of 7 October 2020 on European crowdfunding service providers for businesses, amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937;
• Regulations of the European Commission containing regulatory and implementing technical standards to specify:
  o the requirements and methods for the application referred to in Article 12, paragraph 1, of Regulation (EU) 2020/1503, including forms, models, and standard procedures for the authorization application; o norms and formats regarding data, as well as models and procedures for information to be communicated pursuant to Article 16, paragraph 3, of Regulation (EU) 2020/1503;
• Provisions of the TUF and, in particular, Article 4-sexies.1, paragraphs 6 and 10.

3. Definitions
   For the purposes of these Measures, the following terms are understood as:

• “TUF”: Legislative Decree No. 58 of 24 February 1998;

• “Regulation (EU) 2020/1503”: Regulation (EU) 2020/1503 of 7 October 2020 on European crowdfunding service providers for businesses, amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937;

• “Delegated Regulation (EU) 2022/2112”: Delegated Regulation (EU) 2022/2112 of 13 July 2022 supplementing Regulation (EU) 2020/1503 of the European Parliament and of the Council regarding regulatory technical standards specifying the requirements and methods for the authorization application as a crowdfunding service provider;

• “Implementing Regulation (EU) 2022/2120”: Implementing Regulation (EU) 2022/2120 of 13 July 2022 establishing implementing technical standards for the application of Regulation (EU) 2020/1503 of the European Parliament and of the Council regarding norms and formats regarding data, as well as models and procedures for communicating information on projects financed through crowdfunding platforms;

• “supervised intermediaries”: banks, intermediaries ex Article 106 of the TUB, payment institutions, electronic money institutions, and SIMs, authorized to provide crowdfunding services pursuant to Article 12 of Regulation (EU) 2020/1503 and Article 4-sexies.1, paragraph 4, of the TUF;

• “intermediaries authorized by the Bank of Italy”: supervised intermediaries, excluding SIMs, authorized by the Bank of Italy to provide crowdfunding services pursuant to Article 12 of Regulation (EU) 2020/1503 and Article 4-sexies.1, paragraph 4, of the TUF;

• “specialized crowdfunding service providers”: entities, other than supervised intermediaries, authorized by Consob to provide crowdfunding services pursuant to Article 12 of Regulation (EU) 2020/1503 and Article 4-sexies.1, paragraph 3, of the TUF;

• “crowdfunding service providers”: the set consisting of supervised intermediaries and specialized crowdfunding service providers, as defined in the preceding paragraphs.
  Unless otherwise specified, for the purposes of these Measures, the definitions contained in the TUF, Regulation (EU) 2020/1503, and the regulatory and implementing technical standards of the aforementioned Regulation apply.

4. Addressees
   These Measures apply to supervised intermediaries in the provision of crowdfunding services referred to in Article 2, paragraph 1, letter a), of Regulation (EU) 2020/1503, as well as to specialized crowdfunding service providers, as established in the individual paragraphs of the subsequent Chapters.
5. Administrative Procedures
   The following administrative procedures related to the provision of crowdfunding services for enterprises are indicated below:

• Authorization of banks, payment institutions, electronic money institutions, and intermediaries registered in the roll provided for by Article 106 of the TUB as crowdfunding service providers and extension of authorization to additional services (Articles 12 and 13 of Regulation (EU) 2020/1503; term: 3 months) (6);
• Revocation of authorization of banks, payment institutions, electronic money institutions, and intermediaries registered in the roll provided for by Article 106 of the TUB as crowdfunding service providers (Article 17 of Regulation (EU) 2020/1503; term: 90 days);
• Dismissal of corporate officers of specialized crowdfunding service providers from office pronounced by the Bank of Italy ex Article 4-sexies.1, paragraph 6, letter f) of the TUF; term: 30 days);

(6) Pursuant to Article 12, paragraph 14, of Regulation (EU) 2020/1503, for the purpose of issuing authorization, banks, intermediaries ex Article 106 of the TUB, payment institutions, and electronic money institutions may omit to provide information that has not undergone changes compared to that already in the possession of the Bank of Italy, producing a declaration attesting that such information has not changed and therefore does not need to be updated. The need to produce all information specifically related to the provision of crowdfunding services remains.

• Supervisory measures pursuant to Article 30, paragraph 2, of Regulation (EU) 2020/1503 (Article 4-sexies.1, paragraph 11, of the TUF; term: 90 days);
• Specific measures pursuant to Article 7, paragraphs 1, 1-bis, and 2, TUF (Article 4-sexies.1, paragraph 11, of the TUF; term: 90 days);
• Injunction measures pursuant to Article 7-ter, TUF (Article 4-sexies.1, paragraph 11, of the TUF; term: 90 days).

CHAPTER II
INFORMATIONAL OBLIGATIONS OF THE CROWDFUNDING SERVICE PROVIDER TOWARDS THE COMPETENT AUTHORITIES

1. Communications to the Competent Authorities
   By 25 January of each year, intermediaries authorized by the Bank of Italy transmit to the latter the information referred to in Article 16, paragraph 1, of Regulation (EU) 2020/1503 (7).
   Crowdfunding service providers must immediately communicate to the Bank of Italy and Consob the dates of commencement of use of the authorization, interruption, and resumption of the provision of crowdfunding services, as well as any substantial modification of the authorization conditions pursuant to Article 15, paragraph 3, of Regulation (EU) 2020/1503 (8). By way of example, substantial modifications of the authorization conditions are considered to be relevant changes in governance arrangements, internal control mechanisms, and services included in the business plan presented at the time of authorization (e.g., the inclusion in the business plan of additional services such as individual management of loan portfolios), the conclusion of new outsourcing agreements for operational functions, and the subsequent loss of suitability requirements by shareholders and corporate officers. Specialized crowdfunding service providers must send to the Bank of Italy by 30 April of each year the information referred to in field 15 of the annex to the Commission Delegated Regulation (EU) 2022/2112 of 13 July 2022 regarding changes made to existing outsourcing agreements. In cases where no changes have occurred, it is sufficient to communicate this circumstance.
2. Shareholders of specialized crowdfunding service providers
   Regulation (EU) 2020/1503 and Delegated Regulation (EU) 2022/2112 provide that anyone who directly or indirectly holds a participation equal to or greater than 20% of the capital or voting rights in the specialized crowdfunding service provider, has no criminal record related to violations of national laws in the sectors of commercial law, bankruptcy law, financial services law, anti-money laundering legislation, anti-fraud legislation, or professional liability obligations. Pursuant to Article 4-sexies.1, paragraph 6, letter d), of the TUF, the discipline provided for in Article 14, paragraphs 5 to 8, of the TUF applies, insofar as compatible, as well as, with reference to the requirements referred to in Article 12, paragraph 3, letter a), of Regulation (EU) 2020/1503, what is provided in the decree adopted in implementation of Article 25, paragraph 2, of the TUB.

(7) Regarding the content of statistical reports drawn up according to harmonized European schemes, see Implementing Regulation (EU) 2022/2120.
(8) See also Article 7, paragraph 1, of the Consob Regulation on crowdfunding services.

If the requirements provided for by Regulation (EU) 2020/1503 and Delegated Regulation (EU) 2022/2112 are not met, pursuant to Article 14, paragraph 5, of the TUF, voting rights and other rights allowing influence on the specialized crowdfunding service provider related to participations exceeding the thresholds referred to in the subsequent letter a) cannot be exercised. These participations must be divested within 120 days or within the different term established by the Bank of Italy. Specialized crowdfunding service providers must communicate to the Bank of Italy:
a) the acquisition or increase of a participation that results in reaching or exceeding the 20% threshold of the capital or voting rights in the crowdfunding service provider, or that results in the possibility of exercising control over the specialized crowdfunding service provider; b) the reduction of the participation below the thresholds referred to in letter a). The communication is made within 10 days from the occurrence of the acquisition, increase, or reduction of the participation or, if later, from the moment the crowdfunding service provider becomes aware of it. The communication referred to in letter a) is accompanied by a note containing the information provided for in field 12 of the annex to Delegated Regulation (EU) 2022/2112. The crowdfunding service provider may indicate any further data and information related to the event or operation. Furthermore, the obligation of annual communication provided for in Part Six, paragraph 2, of the Bank of Italy’s Measures on ownership structures of banks and other intermediaries applies to specialized crowdfunding service providers.
3. Corporate officers of specialized crowdfunding service providers
Regulation (EU) 2020/1503 provides that the natural persons responsible for the management of the specialized crowdfunding service provider (“corporate officers”) (9) possess sufficient knowledge, skills, and experience to manage the crowdfunding service provider, are required to devote sufficient time to the exercise of their functions, and have no criminal record related to violations of national laws in the sectors of commercial law, bankruptcy law, financial services law, anti-money laundering legislation, or anti-fraud legislation, or professional liability obligations. Pursuant to Article 4-sexies.1, paragraph 6, letter f), of the TUF, the discipline provided for in Article 13, paragraphs 5 and 6, of the TUF applies, insofar as compatible, as well as with reference to the requirements referred to in Article 12, paragraph 3, letter a), of Regulation (EU) 2020/1503, what is provided in the decree adopted in implementation of Article 26, paragraph 3, of the TUB.

(9) Pursuant to Delegated Regulation (EU) 2022/2112 implementing the CF Regulation, the possession of the requirements by the persons responsible for the management of the crowdfunding service provider must be satisfied by each natural person who is a member of the administrative or supervisory body of the provider and by each natural person who effectively directs the activity. Therefore, the notion of corporate officers includes those who perform administrative, managerial, and supervisory functions.

For the purpose of assessing the suitability of corporate officers referred to in Article 13, paragraph 6, of the TUF, what is provided for in Section I, Section II, paragraphs 1.1, 1.2, 1.3, 1.4, 1.5, 1.7, 1.8, 1.9, 1.11, 2, 3, 5, and Section III, paragraph 2, of the Bank of Italy Decision of 4 May 2021, containing “Measures on the procedure for assessing the suitability of executives of banks, financial intermediaries, electronic money institutions, payment institutions, and deposit guarantee systems” (10) applies, insofar as compatible. For the purpose of applying Section II, paragraph 1.2, of such Decision, the documentation proving the suitability of executives that the competent body is required to acquire includes the information provided for in field 13 of the annex to Delegated Regulation (EU) 2022/2112. In addition to what is provided for in Section II, paragraph 1.7, note 5, of the aforementioned Decision, such information is attached to the assessment minutes that the crowdfunding service provider is required to transmit to the Bank of Italy (11).

(10) For the purpose of applying such Decision, for subjects who are components of a monocratic body, the possession of the requirements is attested by a self-declaration by the interested subject, which confirms in detail the presence of the requirements.
(11) For the fulfillment of the obligation, provided for in the aforementioned Section II, paragraph 1.7, note 5, to attach the executive’s curriculum vitae to the assessment minutes, it is considered sufficient to transmit to the Bank of Italy the information provided for in field 13, sub-field 10, of the annex to Delegated Regulation (EU) 2022/2112.