Italy: What happened in 2021 and significant events in 2022
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New EU framework on Crowdfunding Services: The draft European Delegation Law 2021 has mandated the Italian Government to align domestic legislation with Regulation (EU) 2020/1503 on crowdfunding service providers (CSPs), as well as to transpose Directive (EU) 2020/1504 (which amends MiFID II on the topic of crowdfunding). In particular, the Crowdfunding Regulation establishes a harmonised legal framework for CSPs operating a public digital platform. This aims to facilitate the matching of prospective investors or lenders with businesses (the “project owners”) that seek funding by way of loans (lending-based crowdfunding) or acquisition of transferable securities (investment-based crowdfunding).
Transposition of the Shareholders Rights Directive: Legislative Decrees no. 49 of 10 May 2019 and no. 84 of 14 July 2020 implemented Directive (EU) 2017/828 (SHRD II). At secondary law level, in 2019 and 2020 both CONSOB and the Bank of Italy launched consultations on proposed changes to their existing rules. The provisions regarding remuneration transparency, asset managers and shareholders’ activism, contained in the CONSOB consultation, were implemented in December 2020. The CONSOB and Bank of Italy consultation on shareholders’ identification, transmission of information and exercise of rights of listed companies’ shareholders will be finalised in 2022.
Cross Border Conversions, Mergers and Demergers: According to the draft European Delegation Law 2021, by 31 January 2023 the Government shall transpose Directive 2019/2121, amending Directive (EU) 2017/1132 as regards cross-border transformations, mergers, and divisions. It updates the existing conditions and provisions for cross-border mergers within the EU and introduces new provisions on cross-border conversions and divisions for limited liability companies. They include the possibility of speeding up the procedure by waiving reports for shareholders and employees in certain circumstances; grant more safeguards to creditors and stakeholders; and introduce a system of prior consent by a competent national authority and an anti-abuse check. Consequently, the main benefit of the Directive is that it provides for a largely identical process for the three cross-border operations throughout the EU.
Transposition of the ‘Omnibus Directive’: The draft European Delegation Law 2021 sets out the principles and criteria for the transposition of Directive (EU) 2019/2161 on better enforcement and modernisation of EU consumer protection rules (the Enforcement and Modernisation Directive, also known as the “Omnibus Directive”). It aims to strengthen consumer rights through enhanced transparency and enforcement measures and will update consumer protection directives: 93/13/EEC (Unfair Contract Terms Directive); 98/6/EC (Price Indication Directive); 2005/29/EC (Unfair Commercial Practices Directive); and 2011/83/EU (Consumer Rights Directive).
Reform of public procurement regulation: The Parliament is setting out the criteria that the Government shall follow when reforming the existing legislation on public contracts, currently set out in the Public Procurement Code. The amendments are expected to consolidate the regulatory framework and to speed up the public tender procedure by simplifying and digitalising the processes. The approval of the delegation law is expected in the next few months and the new Public Procurement Code within the following six months.
National Code of Equal Opportunities – stop gender pay gap: With Law no. 162 of 5 November 2021, the Italian Parliament approved a gender wage parity package. The very ambitious provision addresses many different concerns: from the purely economic (i.e., equal pay for equal work), to gender inequalities and maternity protection. The main measures include: (i) the introduction of the certification of gender equality, which aims at certifying the measures taken by employers to reduce the gender gap; (ii) the provision of economic bonuses for the “virtuous” employer; (iii) the introduction of the obligation for public and private companies with more than 50 employees (threshold was previously 100) to draw up a biannual report on gender diversity.
Transposition of Whistleblowing Directive: The European Delegation Law 2019-2020 delegates the Government to transpose, by 17 December 2021, Directive (EU) 2019/1937 (Whistleblower Directive). The scope of this Directive is to ensure a high level of protection for persons reporting EU law violations in areas such as public procurement, financial services, products and markets, prevention of money laundering and terrorist financing, environmental protection and consumer protection. The directive provides a very broad definition of a whistleblower, corresponding to a heterogeneous category of persons working both in the public and private sectors. These include employees and self-employed persons, shareholders, facilitators, volunteers, trainees, colleagues and relatives of the whistleblower. More specifically, their protection is strengthened by introducing effective, confidential and secure reporting channels, as well as ensuring effective protection from retaliation.
Measures to support employment: The draft 2022 Budget Law introduces several measures to support employment. More specifically, (i) it implements the reform of social safety nets; (ii) it provides incentives for the use of solidarity contracts; (iii) it extends the so called “expansion contracts” to all the companies which employ more than 50 workers to 2023. Retirement provisions aim to ensure greater flexibility and turnover of workers. Firstly, “Quota 100” will be substituted by “Quota 102”. This makes it possible to retire at 64 with 38 years of paid contributions. Furthermore, both the so- called “Opzione Donna” (an early retirement pension provided by the State to which female workers who meet specific requirements have access) and the State-funded pension advance (so-called “APE sociale”) will be extended and enlarged to heavy manual workers.
Transposition of MiFID II Quick-fix Directive: According to the draft European Delegation Law 2021, the Government shall transpose Directive 2021/338 (MiFID II Quick-fix Directive, adopted in the context of the Capital Markets Recovery Package as a response to Covid-19). The Directive aims to reduce the regulatory complexity and compliance costs of investment services as well as to eliminate distortions of competition, without compromising investor protection. The most important changes concern: the organisational requirements for investment service providers combined with exceptions to product governance requirements; information requirements and transparency; the conditions under which investment firms can pay jointly for research and execution services; the new criteria based on which a trading activity is considered ancillary to the main business; and possession of a commodity derivatives regime.
New rules on venture capital and social entrepreneurship funds: Under Law no. 53 of 22 April 2021 (“European Delegation Law 2019-2020), the Government was required to align existing legislation with Regulation (EU) 2017/1991, which amended the EU Regulations on Venture Capital Funds (EuVECA) and Social Entrepreneurship Funds (EuSEF). The updated regulations: widen the range of managers eligible to manage and distribute EuVECA and EuSEF; expand the ability of EuVECA to invest in unlisted companies with up to 499 employees or small and medium-sized guaranteeing a turnaround time of two months for new manager registrations; determine the minimum capital necessary to become a manager; and ensure that ESMA’s central database includes information concerning all EuVECA and EuSEF managers and their funds.
Implementation of the Pan-European Personal Pension (PEPP) Regulation: The European Delegation Law 2019-2020 sets out the principles and criteria to be followed by the Government when implementing the Regulation (EU) 2019/1238 on the pan-European personal pension product (“PEPP Regulation”). The PEPP is a voluntary personal pension scheme that will complement existing public and occupational pension systems, as well as national private pension schemes. With the new regulation, PEPP providers will benefit from a true single market for personal pensions and from facilitated cross-border distribution, including an EU passport. The regulation ensures standardisation of the core product features, such as: transparency requirements, investment rules and switching rights and type of investment options. Thanks to the standardisation of these core PEPP features, providers will also be able to sell PEPPs online and to distribute them in several Member States with one single product registration.
Implementation of the Securitisation Regulation: In the European Delegation Law 2019-2020, the Government was mandated to adapt the existing legislation to the provisions of Regulation (EU) 2017/2402. This establishes a general framework for securitisation and a specific framework for simple, transparent, and standardised securitisations (STS Regulation). The STS Regulation also changes some matters relating to securitisations that are already subject to EU regulation. These include the need for the investor to carry out due diligence activities, or the need to maintain a net economic interest in the securitisation (“the risk retention rule”).