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Introduction
Last 12 January the Italian authority supervising credit brokers and financial agents (“OAM” – “Organismo Agenti e Mediatori”) launched a public consultation on a draft Interpretative Communication entitled “Clarifications regarding the functioning of online platforms offering services of quoting and/or comparison of financing options” (“Communication”).
From the Authority’s perspective, the clarification contained in the Communication is needed in light of the growing importance of online platforms providing services of quoting and/or comparison of financing options, accompanied by the subsequent facilitation of contact with the banks offering said credit products.
The purpose of the initiative is therefore to overcome certain objective uncertainties as to the perimeter within which the activity of said platforms must be deemed reserved for subjects who are registered on the lists kept by the OAM, with a focus on activities involving contact with clients.
Due to the approaching deadline for the consultation, it seems useful to touch briefly on the main points of attention in the Communication as well as on some preliminary insights regarding the draft prepared by the Authority.
The Communication
As highlighted above, the Communication arises from the need to resolve some uncertainties as to the perimeter of the activities reserved for operators registered with the OAM lists, which may clearly hinder the performance of effective control of the fairness of the conduct of the persons concerned.
On the other hand, the presence of such margins of uncertainty may also result in competitive disparity among subjects operating in the same market segment. Indeed, it cannot be ignored that different regulatory regimes are applied (or at least applicable) to the performance of the same activity, depending on whether or not the operators in question are authorised (and, therefore, subject to supervision), with inevitable consequences in terms of compliance costs and enforceable business strategies.
The Communication focuses in particular on the activity of operators of online platforms that provide services for free comparison of one or more quotations for credit products provided by different lenders, facilitating the subsequent contact between the parties.
Such operators have usually recourse to lead generation mechanisms, meaning attempts to make contact with potential customers looking for financing options, mainly through online advertising, followed by the collection of specific personal and financial data on the potential customers reached (“client need profiling” activities).
The potential issues of concern which, in the OAM’s view, are inherent in the performance of the activity carried out by said platforms, are associated with two different aspects:
Concerning the first of the two aspects highlighted, in concluding the Communication, the Authority describes the corrective measures deemed necessary: the platform must inform users that it does not provide a comparison of the full range of offers available on the market and, therefore, does not propose the absolute most convenient product. Furthermore, the platform must inform clients that the conditions of the offer proposed at the end of the simulations may vary as a result of the lender’s assessments of the client's specific position.
Finally, the Authority recalls that the OAM has the responsibility checking due application of the above-mentioned transparency rules as well as of preventing and combating any unlawful exercise of the activity of credit intermediation, pursuant to Article 140-bis of Legislative Decree No. 385 of September 1, 1993 (“Consolidated Law on Banking”).
Concerning the second of the above-mentioned aspects, the Communication on the other hand specifies which activities can also be carried out by platforms not registered with the OAM and which ones must instead be considered reserved for authorised persons.
According to the Authority, “the use of websites or web marketing tools - the purpose of which is to encourage users to provide their data in order to facilitate contact with lenders for the purpose of credit promotion -, if implemented by persons not subject to Supervision, should be limited to the collection of personal and contact data of anyone who may be interested in credit products, excluding any - even minimal - data collection or profiling regarding the user's financing needs and any form of promotion or analysis, preliminary investigation and information on the product”.
The perimeter of the reservation is thus identified in the type of information collected as a result of the interaction with clients. Personal and contact data can be requested from the users reached without the need to be registered with the register of agents and brokers. Data collection or further profiling must indeed be deemed an activity subject to reservation.
From the Authority’s perspective, the profiling of the potential client’s financing needs is decisive in bringing the activity provided within the scope of the reservation.
When a platform has such a purpose, also the activity of collecting information (other than personal and contact data) or any activities involving product promotion and description or preliminary assessment operations for potential customers will, according to the OAM, fall within the scope of the reservation.
In that regard, however, it should be noted that, after the so-called “lead generation phase”, two further phases can be theoretically identified, by nature conceptually and chronologically autonomous.
Indeed, one can first identify an activity of mere (material) collection of information from clients, not necessarily limited to their personal and contact data, but potentially concerning also further circumstances.
Such activity, when involving the mere provision of a questionnaire and the storing of the client’s answers, in the absence of any form of promotion or analysis, preliminary assessment operations and provision of information in respect of credit products, should in our opinion not be deemed as falling within the scope of credit brokerage.
Different and ideally subsequent to the above phase would be, instead, the phase of processing/aggregation of the data and information collected, which is actually aimed at identifying a commercial proposal that meets the client’s financing needs and which may well be carried out by a different person from the one who provided the questionnaire.
While the latter activities can certainly be considered as falling within the scope of credit brokerage, thus subject to reservation (and therefore exercisable only by persons authorised to carry out brokerage activities, as being registered with the OAM), we are however of the opinion that the mere collection of “raw” information (possibly through the provision of a questionnaire including information relating also to the potential client’s credit needs), not accompanied by any further processing and assessment of the information provided, does not in itself require registration with the register of agents and brokers.
Finally, the Authority describes a further category of services, common in practice, normally associated with the circumstance of subject operating as a mere “advertising showcase”, which it considers to fall outside the scope of reserved activities.
Reference is made in particular to the activity of those platforms which - having a completely different core business than credit and financial brokerage - display a mere banner/advertisement that links directly to a website and/or to an operating branch managed by a subject registered with the OAM or by a qualified banking and/or financial intermediary.
Similar to the case described above is the activity of those who limit themselves to carrying out abstract creditworthiness simulations or reporting a list of lenders who offer financing, without collecting any data on credit needs nor providing quotes concerning specific products and directly directing the potential client to a subject registered with the OAM or to an authorised banking and/or financial intermediary.
In conclusion, even subject to the above-mentioned specifications - on which we hope the OAM will take a favourable stand -, we believe that the Communication provides significant clarification for the operators in the sector, removing some of the interpretative uncertainties that would now seem capable of altering the “level playing field”.
