What struck me most today was not a single idea, but the overall tone, which I would describe — in a single word — as honest.

Honest because no one played the part of the uncritical enthusiast, nor that of the nostalgic Luddite. You all brwought something far more valuable to the table: the real complexity of those who work with these tools every day, or who are wondering whether and how to do so.

Let me try to bring it all together.

Read the full article on Global LegalTech Hub

By amending Articles 7, 7.1 and 7.2 of Law No. 130/1999 (the Italian Securitisation Law), the reform enables companies to unlock the financial value of their stock through capital markets structures, offering an alternative to traditional collateral-based lending.

1. Key Elements of the Reform

Inventory becomes a securitisable asset: for the first time, non-registered movable assets — including inventory — may be directly securitised. This allows transactions based on the transfer of stock to an securitisation vehicle and the issuance of inventory-backed notes under Article 7.2.

Expansion of the segregated pool (patrimonio destinato): the designated pool may now include not only receivables but also assets across the entire production cycle — raw materials, work in progress, finished goods and substitute assets — enabling dynamic, revolving structures aligned with operational needs.

Two alternative securitisation routes:

(i) Article 7.1 structure: the company designates inventory (together with existing or future receivables) within a segregated pool, or transfers it to a supporting non-issuing SPV. The issuing SPV grants a limited recourse loan, with repayment sourced from the segregated assets and related proceeds within a statutorily ring-fenced structure.

(ii) Article 7.2 structure: the inventory is sold to the issuing SPV in a true sale transaction. The SPV finances the purchase through the issuance of notes backed by the transferred stock and related sale proceeds, allowing a structurally cleaner destocking solution.

Access for non-licensed lenders: non-licensed lenders may use securitisation techniques to provide inventory financing (previously reserved for banks and regulated intermediaries) or to purchase the inventory.

2. Biggest Changes from the Previous Framework

The reform marks a clear shift from pledge-based inventory finance to full securitisation alternatives. Previously, inventory financing relied on non-possessory pledges securing a loan. The new regime introduces structures based either on statutory segregation (Article 7.1) or on true sale to an issuing SPV (Article 7.2), significantly broadening the available toolkit. Designated pools are no longer limited to receivables and ancillary collateral but may encompass the entire production cycle, enabling revolving and continuously replenishable structures. The introduction of a true sale option under Article 7.2 also creates the possibility of off-balance sheet treatment and clearer structural ring-fencing compared to traditional security-based models.

3. Why It Matters

The reform materially expands inventory-based financing in Italy. It opens new liquidity channels, reduces the operational constraints associated with pledge structures, and facilitates market-driven destocking transactions through standardised securitisation tools.

For a complete analysis — including structural diagrams, tax considerations and a detailed comparison of Articles 7.1 and 7.2 — please refer to our full alert available here.

https://www.advant-nctm.com/en/news/legge-annuale-pmi-novita-in-tema-di-cartolarizzazioni-per-lo-smobilizzo-del-magazzino 

Morelli comes from CRCCD and has extensive experience in advising on debt capital markets transactions, both domestically and internationally, as well as on subordinated debt issues, company law and corporate governance.

The arrival of the new partner also sees Martina Baldi, managing associate, and Federica Alici Biondi, senior associate with expertise in equity capital markets (ECM), join ADVANT Nctm. 

Morelli’s entry also responds to the new market trend involving an increasingly widespread use of Italian law to regulate bond issues, with a consequent repatriation of bonds from Italian issuers.

As part of this development strategy, the firm also announces the entry, as counsel, of Gaetano Petroni, a professional who, in addition to dealing with real estate finance, has solid experience in high-yield instrument issues.

“The arrival of Federico Morelli – comments Paolo Montironi, Senior Partner at ADVANT Nctm – confirms the firm’s desire to continue along a path of strengthening through the addition of professionals with distinctive experience and strong development skills. This enables us to further enhance the quality of the assistance we provide to our clients and to make our service offering increasingly comprehensive and responsive to changes in the economic environment. It is through this type of investment that we continue to evolve our advisory model, putting our expertise, vision and innovation at the service of our clients’ challenges.”

These appointments are part of the firm's internal growth strategy, aimed at enhancing its talents and building solid career paths. They represent a further step in strengthening ADVANT Nctm's competitiveness and professionalism.

Giuseppe Buono has extensive experience in banking and finance law and capital markets, with a particular focus on leveraged finance, real estate finance, project and corporate finance, as well as debt capital markets. He regularly assists banks, funds, and companies in both domestic and cross-border financing operations, overseeing their structuring and documentation. He has also managed numerous basket bond transactions in the Italian market.

Andrea Iovieno is an expert in corporate and capital markets law, with a focus on both equity and debt capital markets. He advises issuers, banks, and financial intermediaries on IPOs, capital increases, extraordinary transactions, and the issuance of debt instruments. He also provides legal assistance in public M&A transactions, as well as in matters concerning corporate governance and regulatory compliance.

Filippo Ughi has solid experience in corporate finance, M&A, private equity, and corporate law. He advises Italian and international industrial companies and investment funds in M&A, private equity, and corporate finance transactions, also offering ongoing corporate consultancy, from bylaws and governance to the operation of corporate bodies.

1. Free float composition

During discussions with trade associations and market operators, the need was identified to change the composition of the minimum free float required for admission to trading on Euronext Growth Milan in order to open up its composition to parties other than institutional investors.The amendment provides that: (i) at least 7.5% must be subscribed by at least 5 institutional investors (currently 10%); (ii) the remaining 2.5% may be subscribed by investors other than unrelated institutional investors or employees of the company or of the group (see Article 6 of EGM Rules, Part Two - Guidelines).

2. Rules on trading suspension in case of Reverse Take-Over

The current rules provide for suspension of trading in financial instruments upon announcement or leak of information regarding an agreed or pending Reverse Take-Over (“RTO”). Such suspension shall remain in effect until the issuer publishes the information document relating to the RTO transaction, accompanied by the related declarations of the issuer and of the Euronext Growth Advisor.Some traders have pointed out, on the one hand, that the suspension of shares during trading might discourage EGM-listed issuers from carrying out external growth transactions and, on the other hand, that Article 17, paragraph 8, of Regulation (EU) No. 596/2014 requires the  timely disclosure to the market of any leaked inside information in order to re-establish full parity of information. In light of said considerations, the current provision is removed with the clarification that trading will be suspended only in the event that the disclosure document (and related declarations) are not published at least 15 days prior to the shareholders’ meeting convened to approve the RTO ([1]) (see Article 14 of EGM Rules, Part Two - Guidelines).

3. Definition of RTO

In relation to the requirements constituting an RTO, the reference to transactions involving «a material change (...) in the board of directors or a change in control» is removed.Borsa Italiana deemed it correct to exclude from the definition of RTO any transaction that, while not exceeding the materiality thresholds, is characterised solely by a material change in the issuer’s board of directors. With regard to change of control, if material, it could trigger different rules such as the obligation to launch a takeover bid (see Article 14 of the Issuers’ Rules, Part One).

4. Declarations in case of an RTO

The current rules provide that, in the case of an RTO, some of the declarations of the Issuer and the relevant Euronext Growth Advisor may be submitted to Borsa Italiana also after the publication of the information document and the meeting approving the RTO, but at the latest close to the date when the RTO becomes effective.The Guidelines of the EGM Rules specify that, if the Issuer and/or the Euronext Growth Advisor avail themselves of said option, the effectiveness of the resolution of the shareholders’ meeting to approve the RTO will be subject to the issuance of the missing declarations. It is important to note that, if such declarations have already been issued at the time of the publication of the Information Document, it will not be necessary to issue them again close to the date when the RTO becomes effective (see, with respect to the issuer’s statements, Article 14, relevant Guidelines and Schedule Seven of the EGM Rules; with respect to the statements of the Euronext Growth Advisor, Article 14 and relevant Guidelines of the EGM Rules as well as Schedule Four of the EGA Rules).

5. Independent directors

The current provisions of the EGM Rules require the Euronext Growth Milan issuer to designate and maintain at least one independent director, chosen from among the candidates who have been previously identified or evaluated positively by the Euronext Growth Advisor.In its review, Borsa Italiana deemed it appropriate to remove such burden on the Euronext Growth Advisor in the phase following admission to trading, maintaining it only at the time of admission to trading.The board of directors will need to define, at least at the beginning of its term of office, quantitative and qualitative criteria for assessing, on a periodic post-admission basis, the materiality of any relationships, making such criteria public knowledge. In addition, the results of the verification must be disclosed to the public by means of an appropriate notice (see Article 6-bis of EGM Issuer Rules, Part One). This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Lukas Plattner and Andrea Iovieno.  News[1] It being understood that, as clarified in the relevant Guidelines, the suspension shall also apply in the event that, following the approval by the shareholders’ meeting and prior to the effectiveness of the RTO, the Euronext Growth Milan issuer and the Euronext Growth Advisor have not yet issued the additional declarations to Borsa Italiana and the Euronext Growth Milan issuer has not consequently published a notice of such issuance.

1. Definition of gold plating

Gold plating means the process whereby EU Member States (at a State, regional or local level) – at the time of adopting regulations and directives – go beyond the minimum level of regulation provided for by EU law, imposing costs and burdens upon undertakings (and citizens) (so-called over-compliance).As highlighted by an in-depth study on the matter by the European economic and social committee (1), the definition of gold plating should be understood broadly so as to also include: (a) not taking advantage of any derogation allowed; (b) retaining national regulatory requirements that are more comprehensive than EU-law requirements; (c) introducing new burdens that fall outside the aim of EU law; (d) implementing EU law before it comes into force; (e) applying sanctions or other enforcement mechanisms stricter than required for proper implementation of the EU law.It should be noted that gold plating cannot be regarded as a transposition measure in open conflict with EU law and, thus, unlawful and subject to infringement procedures, but can trigger regulatory arbitrage, competition between legal systems and races to the bottom (or to the top) (2), thus becoming an attraction or a deterrent for business establishment, financial investment as well as for the attractiveness of the domestic market. Gold plating can ultimately be a serious obstacle to the creation of a true single capital market (3). 

2. UE and gold plating: between harmonisation and soft law

As properly noted by the Italian Supreme Court (4), gold plating is not a principle of EU law, which, certainly, binds Member States to the implementation of directives, while leaving them free to choose the most appropriate means of achieving the intended result, except for self-implementing rules (where, however, there is no shortage of gold plating cases).The absence of a specific EU legal instrument to address said problem, therefore, places on Member states the burden of identifying and removing the cases of gold plating, which is a major disruptor to the smooth functioning of the single market.According to the EU Commission, indeed, gold plating not only unfairly disadvantages businesses (and, particularly, SMEs (5) and citizens, but also reduces the competitiveness of the European Union as a global player, given the increase in administrative costs, and is an undesirable element of fragmentation of the internal market (6).The EU might of course remove or at least radically reduce gold plating by moving from minimum harmonisation directives to maximum (or full) harmonisation directives or regulations. However, as is known, the terrain of company law is particularly complex, as has also emerged from the speeches before me, and there are several voices suggesting that we should proceed very carefully and cautiously in the pursuit of harmonisation at all costs (7).On the other hand, it should be emphasised that significant steps have been taken towards the maximum harmonisation of some areas of financial market law, which has direct relevance to the internal market, by regulations on: accounting information (Regulation 1606/2002), market abuse (Regulation 596/2014) and prospectus (Regulation 1129/2017), which, however, are also often marked by gold plating.And perhaps further steps can be taken. One of these could be the introduction, which seems to be approaching, of a common framework for multiple voting rights in listed companies (8). As for the latter, the hope is that the Listing Act being drafted by the Commission will lead to bold simplification illuminated by proportionality for SMEs.In addition to harmonisation by legislation, the reduction of gold plating phenomena can be the subject of soft law actions by EU institutions, aimed at guiding domestic legislators through recommendations and guidelines, which, however, in order to be truly effective, should be accompanied by systematic monitoring by Member States through, for example, comply or explain processes.In our field, it is worth mentioning the Recommendations on Remuneration and Duties of Directors of Listed Companies (9), on remuneration policies in the financial sector and on the quality of corporate governance reporting (comply or explain principle).I will not go further into this topic as it is beyond my assigned task. This afternoon we will hear some extensive reports on the directives to be implemented and the work in progress. 

3. Domestic rules

The prohibition on gold plating was codified in Article 14, paragraphs 24, bis, ter and quater, of Law 246/2005 (introduced by Law 183/2011 “2012 Stability Law”), which requires avoiding:

• the introduction or maintenance of requirements, standards, obligations and burdens that are not strictly necessary for the implementation of directives;
• the extension of the subjective or objective scope of application of the rules compared to the provisions of the directives, where resulting in increasing the administrative burdens for the recipients;
• the introduction or maintenance of sanctions, procedures or operational mechanisms that are more burdensome or complex than those strictly necessary to implement the directives.

Subsequently, Article 32, paragraph 1(c), Law 234/2012, was introduced, which included, amongst the criteria for the exercise of the legislative powers granted to the government for the adoption of EU rules, the prohibition of gold plating, which could have, according to some, a peculiar relevance in the area of enforcement (10).There is, in addition, the 2018 Guide to Regulatory Impact Analysis and Verification, which sets out provisions for regulatory inquiry with a particular emphasis on gold plating, SMEs, and proportionality (11).Lastly, let us recall that the administrative action of the Bank of Italy and Consob in the sphere of the regulation of market law must be oriented by the “recognition of the international character of the financial market and safeguarding of the competitive position of Italian industry” under Article 6, paragraph 1, (c) of the Consolidated Act on Finance. In this regard, one should also look at the more general system of public administration and governance of the Supervisory Authorities, which can no longer be a source of competitive disadvantage vis-à-vis other countries (12).Primary and secondary legislation is fully aligned with the guidelines of the EU Commission and clearly converges towards countering and eliminating gold plating in order to provide a competitive and attractive regulatory framework for businesses and, in particular, SMEs. 

4. Cases of gold plating

Despite the clarity of the Italian regulatory framework, are there cases of gold plating? Are they justified because of specific requirements of the Italian market? Here are a few examples (I counted over 40):

• Some aspects of company law (Directive 1132/2017) - share capital - see Article 2327 of the Italian Civil Code, now €50,000 for S.p.A. (joint-stock companies) can a proportional criterion be adopted for SMEs S.p.A.? I must point out that the minimum threshold is €25,000 (Article 45(1) of Directive 1132/2017) and the rules governing extraordinary transactions such as the raising of risk capital (quorum to be reduced, Article 2368, paragraph 2, of the Italian Civil Code), voluntary capital reduction (quorum to be reduced and terms, Article 2445 of the Italian Civil Code), reduction for losses (which, as highlighted by Prof. Ferri just now could be revised from a “vintage” perspective) contributions in kind (subject to several uncoordinated interventions and lack of derogation pursuant Article 49(4) of Directive 1132/2017), mergers/demergers (time limits and procedure, e.g. 60 days to oppose creditors or publication in the OJ), treasury shares (Article 2357 of the Italian Civil Code), and the quantitative limit to be increased, Article 2368, paragraph 2, of the Italian Civil Code, quantitative limit to be increased, the issue of manipulation is largely superseded by the MAR and the extension of the maximum length of the authorisation to 5 years, see Article 61 of the Directive).
• Shareholder Rights Directive - (EU Directive 2007/36) - extension of the rules on transactions with related parties to issuers of financial instruments widely distributed among the public pursuant to Article 2391-bis of the Italian Civil Code.; binding vote on remuneration policy (Article 123-ter, paragraph 3-ter, TUF, indication of remuneration to affiliated companies (Article 123-ter, paragraph 4(b), TUF);  identification of shareholders at the request of minority shareholders (83-duodecies, paragraph 3, TUF) (13); and see also the concerns expressed by authoritative scholars on Consob’s control of the substantial correctness of RPTs, which may pave the way for an administrative scrutiny of the business judgement rule (14)
• Takeover bid (OPA) - (Directive 25/2004) broader offer document content (see Annex 4, Issuers' Regulation vs. Article 6, paragraph 3, TD); squeeze-out from 95% to 90% (111 TUF, see Article 15, Directive 25/2004), see Loi Pacte (2019) which reduced the threshold from 95% to 90% to limit opportunistic behaviour of a small minority; consolidation takeover bid (106, TUF, not provided for by Directive 25/2004, should it be reconsidered?).
• Transparency (Directive 109/2004): quarterly reporting obligations of transactions carried out with the dissenting opinion of the RPTs Committee (Article 7, paragraph 1, letter (g), Consob RPTs Regulation vs. Article 5, paragraph 4 TD and Article 4, paragraph 1, Directive 2007/14/EC); calling of the shareholders' meeting through notice published in the press (Article 2366 of the Italian Civil Code and Article 113-ter, TUF, with respect to the disclosure obligations of regulated information see Article 21, paragraph 1, and recital 8 TD); content of the notice of calling (Article 127-quater, TUF vs. Article 17, paragraph 2, letters (a) to (d) TD); liability of the manager in charge of drawing up the corporate accounting documents pursuant to Article 154-bis TUF (see Article 7, TD, but Article 3, paragraph 1, which allows for extension but only 5 Member States have extended liability); significant shareholdings thresholds not perfectly overlapping (Article 117, Consob Issuers’ Regulation and Article 9, TD, 3% (discouraging institutional investors) and 90%); methods of disclosure of relevant shareholdings to Consob (see Annex 4 vs. Article 12, paragraph 1, letters (a) to (d)); sanctioning system (192-bis, 192-quinquies, 193 TUF, which seems not proportionate, as required by Article 28, TD).
• MAR (Regulation EU 596/2014) - double track of administrative and criminal sanctions (but see Supreme Court 149/2022 on copyright, which hopefully could lead to a profound rethinking of the sanctioning system); Article 114, paragraph 7, TUF with respect to the application of MAR to controlling shareholders or shareholders with more than 10% (certainly not applicable to MTF issuers but the point should be clarified, see Article 114, paragraph 12, TUF), which could perhaps be reconsidered in light of the gold plating permitted by the Transparency Directive (see Article 120, 4-bis, TUF, and Recital 12 on declaration of intentions); Articles 110 and 111 of the Issuers' Regulation, which, perhaps due to a lack of coordination, apparently impose additional disclosure requirements on MTF issuers;
• Prospectus - (Regulation 2017/1129) liability of the person responsible for the placement (Article 94, paragraph 7, TUF); application of Consob's powers under Article 115 TUF to the issuer's controlling and controlled entities and to the offerors or persons requesting admission to trading (Article 97, paragraph 1 and Article 113, paragraph 1, letter f, TUF) (Assonime). See, however, Consob Resolution No. 22423/2022 of last July (prospectus in English, prefiling also on indications (15);
• Financial Statements - Prohibition to adopt IFRS for companies that may draw up simplified financial statements (16).

In my opinion, almost all of such cases seem to be the result of an excess of tutiorism. Often, a spontaneous instinct of precaution seems to prevail in the Italian legislator, with provisions introduced into the legal system in a non-systematic way but, rather, by means of occasional and non-organic legislative initiatives, sometimes in response to crises and scandals of various kinds and media coverage (17). 

5. Quo vadis?

How to intervene in order to eliminate gold plating so as to comply with one of the cardinal objectives of the company law reform, namely “to encourage the creation, growth and competitiveness of companies, including through their access to domestic and international capital markets” (see Article 2, 1, (c), of Law 366/2001?The solution can only be a robust, rapid (and courageous) legislative intervention (18) aimed at modernising and simplifying company and financial market law, and we hope that this will be one of the priorities of the next government. In 2023 the reform of the Italian Civil Code will be twenty years old, while the Consolidated Law on Finance will be twenty-five years old.Pleas to such effect follow one another and were also the subject of an article in Monday's Financial Times (19).To tell the truth, in our country, much of the work has already been done by the current Government and, in particular, by the Fifth Division - Regulation and Supervision of the Financial System of the MEF, directed by Stefano Cappiello, who published at the beginning of the year a Green Paper entitled La competitività dei mercati finanziari italiani a supporto della crescita (Competitiveness of Italian financial markets in support of growth) (February 2022), which obtained broad market consensus (20).The Green Paper, drafted with the participation of Consob, Banca d'Italia, Borsa Italiana and various trade associations, mentions numerous micro-regulatory measures (21) aimed at eliminating the legislative and regulatory provisions issued over the years in breach of the prohibition on gold plating Their full adoption would lead to a significant simplification (and strengthening) of company law (22).As stated therein, there is an urgent need for an organic and systematic review of the regulatory and institutional frameworks in the sphere of capital market regulation and company law "which - as a result of the stratification of primary and derived legislation, listing rules and administrative practices - lead to stricter constraints and higher costs than those required by harmonised European law (so-called “goldplating” cases) and are not supported by adequate justification, representing exceptions when compared at European level".The report, prepared by the MEF in compliance with the EU better regulation principles, is characterised by several action guidelines: (a) zero impact in terms of costs for the State; (b) simplification, always keeping in mind the protection of minority shareholders and/or creditors; (c) proportionality for SMEs; (d) analysis of best practices developed in other EU Member States (23), taking up, in the latter, the suggestion formulated by Klaus Hopt at the opening of the millennium, namely see looking beyond frontiers/learning from the neighbour's experiences (24) or by Paolo Montalenti when he speaks of spontaneous adaptation of national laws to similar rules and principles (25).So, the path seems set out and, looking beyond gold plating, an organic legislative intervention can no longer be postponed. It is therefore essential that politics and the Government focus without delay on the most appropriate instruments to ensure the competitiveness of Italian companies on national and international markets.As Piergaetano Marchetti (2022) pointed out in a recent seminar, “our system must be competitive with European systems: not competitive in the sense of a more permissive system, but also not competitive in the sense of a more onerous, more limiting system” (26). This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Lukas Plattner. (*) Report on XXXV Workshop “Adolfo Beria di Argentine” on current civil procedural law issues. Il diritto societario europeo: quo vadis? Courmayeur, 23-24 September 2022, being printed, in Quad. di Giur. comm.(1) Smart governance of internal market for business (2014).(2) Enriques e Zorzi, Armonizzazione e arbitraggio normativo nel diritto societario europeo, Riv. soc., 2016, page 775 et seq.(3) Marchetti, Il crescente ruolo delle autorità di controllo nella disciplina delle società quotate, Riv. soc., 2016, page 33 et seq.(4) Italian Supreme Court, judgment No. 100 of 27 May 2020.(5) Small and medium-sized enterprises (SMEs) are the backbone of Europe's economy. They represent 99% of all businesses in the EU. They employ around 100 million people, account for more than half of Europe’s GDP and play a key role in adding value in every sector of the economy (EU Commission, Entrepreneurship and small and medium-sized enterprises (SMEs))(6) Communication Better regulation: joining forces for better laws (2021); Communication on Identifying and Addressing Barriers to the Single Market (2020). The EU Commission, also with specific reference to SMEs, has not failed to emphasise the difficulty for it to identify and remove national implementing provisions affected by gold plating while recommending that member states to take steps in this regard (see also Communication Identifying and Addressing Single Market Barriers (2021).(7) Enriques, 2006, 2015, 2016; European Company Law Expert, Ferrarini et al. 2012. It should also be recalled that the negotiations on minimum harmonization directives are often inevitably influenced by the opportunistic behavior of Member States that may be pressured to accept a (minimum) harmonisation level, already knowing that, having failed to persuade other Member States to agree to more stringent standards, they will adopt more stringent requirements domestically or maintain existing ones, Commission Staff Working Document – “Report on more stringent national measures” concerning Directive 2004/109/EC”.(8) See Reccomendation TESG in Empowering EU Capital Markets- Making listing cool again Final report of the Technical Expert Stakeholder Group (TESG) on SMEs (2021), further references available at ssrn.com/abstract=3858732, 2021 subsequently submitted for consultation under the Listing Act, available at finance.ec.europa.eu/regulation-and-supervision/consultations/finance-2021- listing-act-targeted_en; see also German government proposal of  26 June 2022, Eckpunkte für ein Zukunftsfinanzierungsgesetz available at  www.bundesfinanzministerium.de/Content/DE/Downloads/Finanzmarktpolitik/2022-06-29- eckpunkte zukunftsfinanzierungsgesetz.html; in Francia Rapport sur les droits de vote multiples du Haut Comité Juridique de la Place Financière de Paris, 15 September 2022; in UK see introduction, of the dual class share onto the LSE premium segment (December 2021)(9) Recommendations 2004/913/EC, 2005/162/EC, supplemented by Recommendation 2009/385/EC, as well as Recommendation 2009/384/EC and Recommendation 2014/208/EU.(10) Rivellini, Il divieto di gold plating e il problema della sua giustiziabilità in Italia, in Riv. trim. dir. pub., page 815 et seq.(11) Dipartimento per gli affari giuridici e legislativi Presidenza del Consiglio dei Ministri (DAGL) (2018).(12) See lastly in relation to Consob governance, contributions by Costi and Vella and of  Plattner and Vismara, Consultazione Libro Verde MEF (2022), available a  https://www.dt.mef.gov.it/it/dipartimento/consultazioni_pubbliche/consultazione_libro_verde.html; see also ESMA, peer review ESMA, 21 July 2022, on balloting and approval of prospectuses.(13) See Assonime and Confindustria, Osservazioni di Assonime e Confindustria alla consultazione del Ministero dell’economia e delle finanze, Dipartimento del tesoro, sullo schema di decreto legislativo per l’attuazione della direttiva (UE) 2017/828 che modifica la direttiva 2007/36/CE per quanto riguarda l’incoraggiamento dell’impegno a lungo termine degli azionisti (Observations of Assonime and Confindustria to the consultation of the Ministry of Economy and Finance, Department of Treasury, on the draft legislative decree for the implementation of Directive (EU) 2017/828 amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement), 2019, see for further Assonime cases, Risposta a consultazione Consob sul recepimento della direttiva (UE) 2017/82 (Response to Consob Consultation on the Transposition of (EU) Directive 2017/828) (Shareholder Rights Directive) (2019) and Risposta Assonime alla Consultazione UE (Assonime Response to the EU Consultation) “Listing Act: making public capital markets more attractive for EU companies and facilitating access to capital for SMEs” (2022).(14) Marchetti, op. cit., page [•].(15) ESMA peer review ESMA, 21 July 2022, on scrutiny and approval of prospectuses by the NCA, where some simplifications are recommended with respect to the operation of the Supervisory Authority where several recommendations are made with respect to the prospectus approval procedure in Italy and to the governance of Consob.(16) Legislative decree 38/2005, Article 4, paragraph 6.(17) SICLARI, European capital markets union and national legislation, in BBTC, I, 2016, page 482 et seq.(18) In some Member States, this process has already been started: see Anti-Gold-Plating-Gesetz of 2019 in Austria (financial information); Projet de loi portant suppression de sur-transpositions de directives européennes en droit français of 2019 (simplification of mergers).(19) Sciorilli Borrelli, Italy under pressure to boost appeal of Milan stock exchange, 19 September 2022(20) See post-consultation explanatory report of 1 July 2022.(21) Some suggested by the OECD in the report Capital Market Review Italy (2020).(22) As previously pointed out (Marchetti 2016), the prohibition on gold plating can also be extended to the already transposed EU rules and be a reason for reflection in order to expel from the system drifts of overcompliance to which we have succumbed in the past and from which we are constantly at risk of being seduced.(23) See, for example, Article 45, draft relaunch decree (May 2020), where interesting comparative insights into the extension of multiple voting rights to already listed companies are to be found.(24) (Hopt, Modern Company Law Problems: A European Perspective Keynote, Company Law Reform in OECD Countries A Comparative Outlook of Current Trends, 2000.(25) Montalenti, Il diritto societario europeo, in AA.VVV, Il Nuovo Diritto delle Società, Le società, IV, edited by Montalenti, in Trattato Diritto Privato dell'Unione Europea, directed by Ajani and Benacchio, Turin, 2022, page 963 et seq.(26) Marchetti, Intervento al seminario istituzionale sulla presentazione di liste di candidati da parte dei consigli di amministrazione uscenti delle società quotate (Speech at the institutional seminar on the presentation of lists of candidates by outgoing boards of directors of listed companies), Senate of the Republic, 6th Committee on Finance and Treasury, 16 June 2022.

Last 19 November the European Commission launched a public consultation [1] in order to assess possible changes to the reference regulatory framework for companies listed on regulated markets or admitted to trading on multilateral trading systems. The public consultation will close on 11 February 2022 [2].The Commission has indeed welcomed the idea that an action to structurally lighten the regulations applicable to issuers, especially small and medium-sized enterprises, (“SMEs”) [3], will facilitate access by European SMEs to the market to finance their growth paths, while maintaining a high level of investor protection and market integrity.The Commission's initiative is part of the new Action Plan for the creation of the Capital Markets Union, with one of its main objectives being to ensure that companies, and in particular SMEs, have rapid access to the market. In particular, the Action Plan has been able to identify the factors that discourage companies from accessing capital markets such as high administrative burden, excessive listing costs and overly stringent compliance rules.For some time now, the importance of a union of European capital markets has been recognised by all stakeholders. On this subject, the Commission itself has recognised how, although important steps have been taken to promote the use of the venture capital market, European markets still remain particularly fragmented.Also in this regard, in recent months, the European institutions seem to have fully understood how the Capital Market Union can be one of the decisive tools to support economic recovery following the crisis due to the continuation of the COVID-19 pandemic, being also a solution for a green and digital transition.

2. The work of the Technical Expert Stakeholder Group

In consideration of the above, in October 2020, the Commission has set up a group of experts (Technical Expert Stakeholder Group, “TESG”) on SMEs [4], which,  after a careful analysis of the functioning of SME growth markets, in May 2021 published a report containing twelve recommendations addressed to the Commission and Member States to help promote access by SMEs to capital markets. TESG's recommendations are based on the work already undertaken by the High Level Forum (“HLF”) [5] and the report published by ESMA for a review of MiFID II.Just like the work done in recent months in the various European institutions, of which we have mentioned only the most recent initiatives, the Consultation Document pays particular attention to SMEs and issuers admitted to trading on SME growth markets (or “SGM”, including Euronext Growth Milan).

3. The consultation on the Listing Act

After formulating questions aimed at providing the Commission with a snapshot of the state of health of European capital markets [6], the second section of the consultation seeks views on certain proposed amendments to various aspects of the applicable regulations, with particular reference to the Prospectus Regulation [7], the Market Abuse Regulation [8], the MiFID II Directive  [9] and the Transparency Directive [10].Overall, it can be noted that the Commission has taken broad account of the proposals made by the groups of experts who met to understand what steps need to be taken to revitalise European markets.More specifically, in the context of the consultation, a central role is played by the work of the TESG, whose recommendations were incorporated into the document published by the Commission.

4. Areas for improvement for SMEs

It is not an extreme statement to assert that, should the proposals put forward in the consultation aimed at meeting the need for simplification expressed by the market be adopted, the regulatory framework applicable to listed SMEs would undergo a real revolution.On the one hand, market access would be considerably less costly and easier and, on the other hand, the on-going obligations to which listed SMEs are subject would be proportionally reduced. All this, as clarified by the consultation document, without any danger to the protection of market integrity.4.1 Prospectus RegulationThe Commission's attention is primarily focused on the Prospectus Regulation, in respect of which various proposals have been put out for consultation. As far as SMEs are concerned, the most important issue is represented by the novelties concerning: (i) the prospectus for secondary issuances of issuers whose securities are already listed on a regulated market or an SGM (for at least 18 months); and (ii) the simplified prospectus [11] for the transition from an SGM to the regulated market [12].The new regime of the EU recovery prospectus (the so-called “Recovery Prospectus”) is part of the above regulatory framework [13].Also in this respect, the Commission submits to the market the proposals of the TESG, which has made a recommendation for the introduction of a new simplified prospectus (replacing the current simplified prospectus for secondary issuances), similar in form to the Recovery Prospectus, to be adopted on a permanent basis for secondary issuances and for transfers from an SGM to a regulated market.4.2 Market Abuse RegulationAs concerns the regulatory framework applicable to listed companies on market abuse, the major shortcoming attributed to the MAR is the fact that the regulations provided for therein apply indiscriminately to various issuers, without a differentiation of the regulatory obligations based on the different structure (and, more generally, on the size) of the individual companies.It is clear from the work of the High Level Forum and TESG that there are certain MAR provisions and requirements that result in a disincentive to listing, without there being any appreciable benefits, in terms of transparency, for the market. In particular, the cost of complying with MAR requirements is considered to be excessively high, especially for SMEs, in addition to the legal uncertainty surrounding certain MAR provisions that needs to be remedied.Notion of inside informationWith particular reference to SMEs, there are numerous issues on which the Commission requests an opinion, starting with the notion of inside information. On this subject, the recommendation of the TESG is reiterated, which invited the legislator to make a distinction between the notion of inside information relevant for the purposes of the prohibition of insider trading and that relevant for the obligation of disclosure, considerably simplifying the obligations connected with MAR regulations.A further element of attention for SMEs is represented by the disclosure regime connected with debt issuances. On this point, the Commission highlights how, according to the TESG, plain vanilla bonds are less exposed to the risks of market abuse, precisely because of the nature of the instrument. Consequently, also on this subject, the Commission is asked to express an opinion on the possibility of providing for less onerous disclosure obligations.Internal dealingThe Commission also intends to assess the possibility of envisaging a revision of the regulatory framework on internal dealing pursuant to Article 19 MAR. For SMEs, the proposals put forward may be particularly relevant from two different points of view. First, it will be possible to decide to raise the relevant threshold to 50,000 Euros and to provide for the obligation to report only when the aforementioned threshold or its multiples are exceeded [14].Second, again echoing the TESG conclusions, market participants may support the proposal to repeal the requirement to maintain the list of close associates referred to in Article 19(5) MAR, which entails costs that are disproportionate to the benefit offered, in terms of disclosure, to the market.Insider ListAgain, with reference to the list of persons with access to inside information (so-called insider list), the Commission has put certain proposals into consultation, again with a view to providing for overall more proportionate rules, in terms of compliance, for SMEs [15]. On this point, although Regulation 2115/2019 [16]  has laid the foundations for the introduction of certain simplifications for companies admitted to trading on an SGM [17], the TESG has recommended removing the obligation to maintain the insider list for issuers with a market capitalisation below €1 billion [18], while introducing at the same time a rationalisation in the information to be included in the said list, for other issuers. Also in this respect, market operators will be able to agree to the TESG proposal.Market soundingThe proposals for modification connected to the market sounding regime meet, in some ways, the same needs connected to those formulated with regard to the insider list. Indeed,  also the market sounding regime represents an instrument of control for the Authorities; such rules, however, translate, once again, into rather complex fulfilments and greater costs for the issuers, especially if one considers the wide-ranging instruments of investigation already available to the Authorities.In this regard too, the TESG recommendation is to derogate from the rules on market sounding by providing that any inside information may be disclosed if appropriate confidentiality agreements are in place. Alternatively, the TESG has proposed to extend the exemption from the market sounding discipline (currently applicable to private placements of debt instruments) to private equity placements only.It will be possible to comment on both proposals during the consultation process.Administrative sanctionsWith reference to the sanctions regime associated with the market abuse discipline, the Consultation Document starts from an important premise: both the HLF report and the TESG recommendations highlight how the regulatory framework appears to be excessively disproportionate, especially for SMEs. The risk of committing an unintentional violation of the MAR and the penalties associated with the relevant regulations represent a considerable deterrent for companies wishing to access the market.Well, also in this regard, the Consultation Document allows the market to express its views on a general rethinking of the sanctioning system linked to the MAR rules.Dual listingIt seems likewise important to point out that the Consultation Document submits to the market the possibility for the legislator to intervene in order to clarify the provisions of Article 33, paragraph 7, of MiFID II, which regulates the requirements of the so-called dual listing (i.e. the admission to trading of its financial instruments in a multilateral trading facility ("MTF") different from the original one). From the reference regulatory framework it emerges that an issuer can initiate the related procedure exclusively following a request by a third party. Therefore, market participants may ask the European legislator to clarify that issuers may independently initiate the dual listing procedure.Minimum corporate governance requirementsThe Consultation Document gives the market an important opportunity to envisage a legislative amendment involving the introduction of a harmonised set of corporate governance principles, as suggested by the TESG.Indeed, according to the most authoritative doctrine [19], a company that adopts a corporate governance system inspired by good corporate governance principles not only achieves an improvement in the ordinary management of the business, but also succeeds in achieving long-term strategic objectives by monitoring its performance.On  such point, the Consultation Document submits to the market certain proposals formulated by the TESG, aimed at introducing minimum corporate governance requirements for issuers admitted to trading on a MFT, such as: (i) disclosure to the market of transactions with related parties; (ii) disclosure of transactions for the acquisition and transfer of significant shareholdings; (iii) appointment of at least one independent director; (iv) identification of a reference person for the management of investor relations; (v) establishment of minimum requirements for delisting transactions, in order to protect minority shareholders.

5. Conclusion

To conclude, it seems that the efforts of the various working groups called upon to draw up proposals for change to the regulatory framework see, in the consultation on the Listing Act, a crucial opportunity to bring European markets closer to the levels of efficiency of other markets (especially the American and Asian markets), which have for some time been achieving much more satisfactory results for companies that decide to access the capital market.It is hoped that the proposals put forward for consultation will meet with a broad consensus, so as to encourage the European legislator to move forward in the direction of strongly simplifying the regulatory framework. From Dirittobancario.It[1] Consultation document (“Consultation Document”), Listing Act: making public capital markets more attractive for EU companies and facilitating access to capital for SMEs, available at the following link: ec.europa.eu/info/consultations/finance-2021-listing-act-targeted_it.[2] Finally, it should be noted that, in parallel with the public consultation on the so-called Listing Act, the Commission has also opened a further twelve-week consultation. Such consultation includes questions dealing with issues of a technical nature mainly addressed to capital markets operators, competent authorities and academics.[3] “Small and medium-sized enterprises”, according to the definition contained in the European Recommendation 361/2003, but on which the market has long been requesting an update (see TESG proposal on the subject).[4] See the Final report of the Technical Expert Stakeholder Group (TESG) on SMEs, Empowering EU Capital Markets for SMEs – Making listing cool again, https://ec.europa.eu/info/business-economy-euro/growth-and-investment/capital-markets-union/what-capital-markets-union_en#tesg[5] High Level Forum on the Capital Markets Union, A new vision for Europe’s Capital Markets. Final Report, 10 June 2020, available at the following link: https://ec.europa.eu/info/sites/info/files/business_economy_euro/growth_and_investment/documents/200610-cmu-high-level-forum-final- report_en.pdf[6] The Consultation Document is divided into two main sections. The first section contains quite general questions and aims to understand what market participants think about the current regulatory framework, including the need for its adaptation.[7] Regulation (EU) 2017/1129, https://eur-lex.europa.eu/legal-content/IT/ALL/?uri=CELEX%3A32017R1129[8] Regulation (EU) 2014/596 (so-called “Market Abuse Regulation” or “MAR”) https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=celex%3A32014R0596[9] Directive 2014/65/EU, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32014L0065[10] Directive 2004/109/EC, https://eur-lex.europa.eu/legal-content/it/TXT/?uri=CELEX:32004L0109[11] See Article 14, paragraph 1, (d), of the Prospectus Regulation.[12] Think, at a domestic level, of the transition from Euronext Growth Milan (formerly AIM Italy) to EuroNext Milan (formerly MTA).[13] The EU Growth prospectus consists of a single document of only 30 pages, which allows investors to know the key information about the issuer, in order to make their own investment decisions, ensuring a reduction of costs for the issuer.[14] According to the TESG (in line with the suggestions of the High Level Forum), the threshold should be calculated (on an aggregate basis) having regard to the market capitalisation of the issuer.

1. Amendments concerning company information for AIM Italia issuers

The first changes of interest to AIM Italia issuers concern the rules on the transmission and publication of company information and will come into force on 12 July 2021.*°*°*Borsa Italiana supplemented Article 17 of the Issuers Regulation (specifically renamed “Company information disclosure”), on the subject of company information, by including, within the scope of the information to be disseminated and published by the AIM Italia issuer, also “the procedure for publication of any document made available to the holders of financial instruments traded on the AIM Italia market”.At the same time, Article 20 of the Issuers Regulation and the related Guidelines, regulating the methods of publication of the documents made available to the holders of financial instruments traded on the AIM Italia market, were deleted, since such provisions are now included in the scope of Article  26, containing the rules relating to the publication of company information.Precisely in relation to Article 26 of the Issuers Regulation (likewise renamed to “Publication and filing of company information”), an important innovation must be mentioned in respect of AIM Italia issuers: (i) first, it was envisaged that  press releases and documents must remain on the website of the AIM Italia issuer for at least 5 years; (ii) second, Borsa Italiana also envisaged that the documents made available to the holders of financial instruments traded on the AIM Italia market (to be published on the website) shall include any explanatory reports for shareholders' meetings and minutes of shareholders' meetings. AIM Italia issuers will therefore be required to publish on their website any explanatory reports prepared in relation to the meeting agenda as well as meeting reports, in relation to which no obligation applied before the introduction of the amendments under examination.Finally, it should be recalled that Article 17.9 of Regulation (EU) No. 596/2014 provides that  Inside information relating to issuers whose financial instruments are admitted to trading on an SME growth market such as AIM Italia may be posted on the trading venue’s website instead of on the website of the issuer where the trading venue chooses to provide such facility for issuers on that market.In such context, it must be underlined that the Notice discloses Borsa Italiana’s intent to develop a specific electronic channel for filing with Borsa Italiana and for the publication on its website of press releases and other relevant information required by the regulations [2].To that end, the Guidelines to Article 26 were supplemented to specify that: (i) with regard to information (including press releases and documents) for which Borsa Italiana has set up a specific electronic transmission channel, the AIM Italia issuer shall transmit that information through that channel; and (ii) the AIM Italia issuer may decide not to publish the information on its own website that it has transmitted to Borsa Italiana through such electronic channel [3].

2. Amendments to the rules on related party transactions for AIM Italia issuers

The further amendments introduced by Borsa Italiana relate to the rules on related party transactions, which proved necessary following Consob Resolution No. 21624 of 10 December 2020, amending the RPT Regulations in order to implement the SHRD II [4]In view of the continuation of the health and economic emergency  and in view of the forthcoming revision of Communication No. DEM/10078683 of 24 September 2010, a transitional period is envisaged until 30 June 2022 within which the issuing companies (not having distributed instruments) must adapt their procedures to the new provisions and the consequent entry into force of the regulatory amendments as from 1 July 2022 [5]. *°*°*Preliminarily, it should be recalled that Article 13 of the Issuers Regulation provides that “Consob’s regulation on related parties transactions applies as provided for by Article 10 of Consob regulation No. 17221 of 12 March 2010 for certain types of issuers, also as regards non-widely distributed issuers” ([6]).Therefore, in light of the amendments made by Consob to the provisions of the RPT Regulations and in keeping with the regulatory approach adopted by the AIM Italia Rules concerning the discipline of related party transactions, Borsa Italiana made some limited adjustments, namely concerning:

(i) Definition of related party

(ii) Approval procedures

(iii) Cases of exemption

(iv) Information to the market

(v) Obligation of abstention for directors involved in a transaction

• the obligation to disclose major shareholdings in certain listed Italian companies[1]; and
• the “declaration of intent” in case of acquisition of shareholdings in listed companies.

More specifically, concerning variations in major shareholdings, Consob, by Resolution No. 21326, repealing previous Resolution No. 21304 of 17 March 2020, which introduced a similar obligation for 48 listed companies, identified according to the double criterion set out in Article 120, paragraph 2-bis, of the pre- Decree version, i.e. a) “high market value” and b) “dispersed shareholding structure”, lowered, for 104 companies listed in Italy (specified in a list attached to Resolution No. 21326), the thresholds triggering the obligation to notify Consob, raising them from 3% to 1%, for "non-SMEs", and from 5% to 3%, for "SMEs", respectively[2].In this regard, it should be noted that, as a result of the Decree – which instead recognises “dispersed shareholding structure” as the only criterion, while ruling out the "high market value" criterion –, Consob’s latitude for decision has been extended[3].On the other hand, concerning enhanced transparency for “declarations of intent”, i.e. the obligation on investors to disclose, when a certain threshold is exceeded, their investment objectives in relation to the period of the following six months, by Resolution No. 21327, Consob availed itself of the option under Article 17 of the Decree to lower the threshold from 10% to 5%. Such provision also extends to the 104 aforementioned companies. Further thresholds of 10%, 20% and 25% remain, instead, unchanged.Both measures, unless revoked earlier, shall apply, for the three-month period from 11 April to 11 July 2020, to the aforesaid 104 companies listed in Italy[4]. Listed companies controlled under the law, i.e. those companies having a shareholder owning 50% of the share capital plus at least one share, remain outside the scope of operation of the aforesaid provisions.At the same time, (by Resolution 21320 of 7 April 2020) Consob amended its Regulation No. 11971/1999 (“Issuers’ Regulation”) (Article 122-ter) with reference to the exemption from the obligation to communicate the “declaration of intent”. According to the new provision, which will come into force on the day following its publication in the Official Gazette, there will be no obligation to make a “declaration of intent”:a) in the cases of exemption provided for in relation to mandatory takeover bids under Article 49, paragraph 1, letters a), limited to the case in which a shareholder alone has the majority of voting rights exercisable at the ordinary shareholders' meeting of the listed issuer, c), d) and h), of the Issuers’ Regulation;b) when the acquisition of the shareholding is also such as to trigger the obligation to launch a tender offer pursuant to Article 106, paragraphs 1 or 1-bis, of the TUF, and any of the exemptions provided for by Article 49, paragraph 1, letters b) or g) applies;c) in the cases of exemption set out in Article 119-bis, paragraph 3, a), b) and c-ter), of the Issuers' Regulation;d) without prejudice to the provisions in the last part of Article 49, paragraph 1, d-bis), if the reaching or exceeding of the thresholds is caused by changes in the share capital and/or the number of voting rights, based on the information published by the issuer pursuant to Article 85-bis of the Issuers’ Regulations;e) for management companies acquiring shareholdings, also in aggregate form, in listed issuers as part of the management activities referred to in Article 116-terdecies, paragraph 1, e) carried out in accordance with the conditions set out in Directive 2009/65/EU, or for non-EU entities carrying on an activity for which, if they had their registered office or central administration in an EU Member State, the authorisation would be required under Directive 2009/65/EU, as well as for Italian AIFs not reserved for professional investors and EU AIFs whose applicable national law provides for investment limits and conditions equivalent to those laid down by Italian law in respect of AIFs not reserved for professional investors;f) for purchases made in the context of public takeover or exchange bids already disclosed to the market.The applicability of the exemption in the cases referred to in the previous letters, except for letter c), is subject to a declaration being made by the person concerned as to existence of any of the exemptions in the specific case. Such declaration is contained in the form required for compliance with the notification obligations under Article 120 of the TUF (Annex 4 of the Issuers’ Regulations).Finally, it should be noted that the exemption clauses provided for by the above-mentioned regulatory changes, which arise from statutory provisions introduced into the TUF in 2017 (the so-called “anti-invasion rules”), shall remain valid also for the new reduced threshold of 5%. This article is for information purposes only and is not, and cannot be intended as, a professional opinion. For further information please contact Lukas Plattner. [1] Pursuant to Article 120, paragraph 2, of the TUF “Persons who hold more than three per cent of the capital of a listed issuer with Italy as home Member State shall notify the investee company and CONSOB. If the issuer is an SME, this threshold is five percent”.[2] Pursuant to Article 1, paragraph 1, letter w-quater.1, of the TUF, SMEs are “… small and medium enterprises, listed issuers whose sales volume, also before admission to trading, is less than 300 million Euros, or which have a market capitalisation of below Euro 500 million. Issuers of listed shares which have exceeded both the aforesaid limits for three consecutive years are not considered SMEs.”.[3] Article 17 of the Decree amends Article 120 of the TUF as follows: “Article 120 of Legislative Decree No. 58 of 24 February 1998 is amended as follows: a) in paragraph 2-bis, the words ‘high current market value and’ are deleted".[4] According to the above mentioned resolutions, anyone who, as of the date hereof, holds an interest in the voting capital of the above listed companies above the new thresholds and below the thresholds set forth in Article 120, paragraph 2, of the TUF, is required to give notice thereof within 10 business days.

1. Financial information to be provided in periodic reporting documents and statutory audit

2. Financial information to be provided in prospectuses and offer documents

On 10 April 2020, by communication No. 3/2020 (“Communication”), Consob provided the market with some operational guidelines on how to conduct ordinary and extraordinary shareholders' meetings.

• the resolution proposals of the majority shareholders must be sent to the company well in advance of the date of the shareholders' meeting or in accordance with the provisions of Article 126-bis of the TUF for shareholders with qualified shareholdings or at the time of submission of the lists, for matters related to the renewal of corporate bodies, or within any deadline set out by the company in the notice of call for submission of individual resolution proposals;
• with specific reference to shareholders' meetings for renewal of corporate bodies, those submitting lists of candidates to be appointed as directors and/or statutory auditors must specify the candidate they intend to propose to the shareholders' meeting as chairman of the management body, if such choice is up to the shareholders' meeting under the bylaws, and/or as chairman of the board of statutory auditors, if the list is a "minority list”.

Concerning the submission of individual proposals for resolutions on the agenda items at the shareholders' meeting, pursuant to Article 126-bis, paragraph 1, third period, of the TUF, in cases where participation is provided for to take place exclusively through the designated representative under the Cura Italia Decree, Consob announced that:

• it is not possible to directly submit individual proposals at the shareholders' meeting through the designated representative;
• at this stage, where, due to health reasons, the physical participation of shareholders in shareholders' meetings can be precluded, companies may provide for an adequate deadline in the notice of call for the submission of individual proposals for resolutions on the agenda items by those having the right to vote, to be published on the company's website; such deadline shall be identified in such a way as to allow shareholders to vote by proxy through the designated representative on each published proposal for resolution.

As is known, in derogation from Article 135-undecies, paragraph 4 of the TUF - pursuant to which the designated representative may be granted powers exclusively to the extent and for the purposes of the same article - the Cura Italia Decree has provided that the designated representative can also be granted proxies and/or sub-delegations under Article 135-novies of the TUF, as the sole representative of an individual shareholder. However, Consob pointed out that the representative designated by the company may only be granted proxies with voting instructions on the individual agenda items to be voted on and that the proxies or sub-delegations under Article 135-novies of the TUF to the designated representative must include voting instructions to be deemed effective.With specific reference to the right to pose questions before the shareholders' meeting pursuant to Article 127-ter of the TUF, it should be noted that the aforementioned provision, as recently amended by Legislative Decree No. 49/2019[4], provides for two different and alternative deadlines for submission of questions by those entitled to vote (i.e., the shareholders who are such also on the date of the “record date” under Article 83-sexies, paragraph 2, of the TUF). The choice between the two deadlines is left to the issuers and must be specified in the notice of call of the shareholders' meeting, pursuant to the aforementioned Article 127-ter of the TUF, to allow the shareholders to be aware of the same. That being said, Consob specified that, should a company opt for the exercise of voting rights exclusively through the designated representative or by correspondence, i.e. without the physical participation of the shareholders in the meeting, one of the possible options to balance the company's interest in having sufficient time to reply to the questions and the shareholders' interest in knowing the replies prior to the expiry of the deadline for granting or revoking proxies to the designated representative, is the option - already chosen by several companies - of providing for the time limit of seven open market days before the shareholders' meeting under Article 127-ter, paragraph 1-bis, of the TUF for the submission of questions, assessing the possibility of reducing, even if only slightly, the time available to the company for replying (at least two days before the shareholders' meeting pursuant to Article 127-ter, paragraph 1-bis, of the TUF), so as to provide replies prior to the expiry of the aforementioned deadline for conferring or revoking proxies.With regard to proxies, Consob pointed out that the rules governing solicitation of voting proxies under Articles 136 et seq. of the TUF, as implemented by Articles 135 et seq. of the Issuers' Regulations, remain unchanged also in the event that companies were to decide to allow participation in the shareholders' meeting exclusively through the designated representative. Consequently:

• pursuant to Article 138, paragraph 1, of the Issuers' Regulations, solicitation may not be carried out by sending a proxy form relating to the solicitation directly to the designated representative;
• for the voting at the shareholders' meeting, the proxies collected as part of the solicitation shall be conferred by the promoter to the representative designated by the company by way of sub-delegation pursuant to Article 135-novies of the TUF;
• in the event that sub-delegation to the designated representative is envisaged, the provisions that allow the promoter - in the cases under Articles 137, paragraph 3 and 138, paragraph 4, of the Issuers' Regulations - to exercise voting rights in a manner different from that proposed, if expressly authorised by the solicited party, if significant events occur that were not known when the proxy was being issued, and cannot be communicated to the solicited party, and it may be reasonably inferred that if this party had known of these significant events, it would have given its approval, shall not apply.

Finally, according to Consob, due to the restrictive measures adopted by the Government in connection with the COVID-19 epidemic, which might involve delay on the part of intermediaries in transmitting the communications to issuers that are required for participation in shareholders' meeting and the exercise of voting rights, the provision of Article 83-sexies, paragraph 4, of the TUF, “... the right to attend shareholders' meetings and the exercise of voting rights if communication has reached the issuer beyond the terms specified in this paragraph, providing it has been received before the start of the works of the meeting works held pursuant to single convocation” remains unchanged. This article is for information purposes only and is not, and cannot be intended as, a professional opinion.For further information please contact Lukas Plattner. [1] In this regard, reference is made to the provisions of Article 127 of the TUF (“Postal or electronic voting”), Article 135-undecies of the TUF and the relevant implementing provisions contained in the Issuers’ Regulation concerning: (i) voting by correspondence (Articles 140 et seq. of the Issuers’ Regulation); (ii) recourse to one or more forms of participation in shareholders’ meetings through electronic means (Article 143-bis of the Issuers’ Regulation); (iii) exercise of the right to vote before the shareholders’ meeting using electronic means (Article 143-ter of the Issuers’ Regulation); (iv) recourse to the designated representative under Article 135-undecies of the TUF (Article 134 of the Issuers’ Regulation).[2] See our alert published on 18 March 2020 “Extension of deadlines to 180 days, remote voting and designated representative for listed issuers”.[3] More specifically, reference is made to the provisions whereby the chairman of the supervisory body and any employees and assistants of the same are responsible, up to when counting starts at the meeting, for the safekeeping and secrecy of ballot cards and revocation declarations, in case of voting by correspondence, and for the safekeeping and confidentiality of the information regarding the votes exercised (and any revocations made) by electronic means before the shareholders’ meeting is held; reference is also made to the provisions concerning the issue of proxies to the designated representative, whereby the latter is responsible for ensuring the confidentiality of voting instructions until the start of the ballot count at the meeting, without prejudice to the possibility to notify such information to any employees and assistants that may be subject to the same confidentiality obligation.[4] Reference is made to Legislative Decree No. 49 of 10 May 2019 (“Directive (EU) 2017/828 of the European Parliament and of the Council of 17 May 2017 amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement”).

1. Deadlines for the publication of periodic financial information

• for annual financial reports, referring to the financial year expiring on 31 December 2019 or even later but before 1 April 2020, two months after the deadline;
• for half-yearly financial reports, referring to a reporting period ending on 31 December 2019 or later but before 31 March 2020, one month after the expiry date.

ESMA has highlighted that periodic financial information is an important reference for investors’ economic decisions, as well as for guiding the exercise of voting rights or other actions aimed at influencing management decisions. ESMA has also pointed out that periodic information should continue to be drafted in accordance with the applicable reference framework for financial reporting in order to ensure investor protection and to preserve the integrity and proper functioning of the financial markets in the European Union.

2. Information to the Market in case of delay

3. ESMA recommendation and Decree Law No. 18 of 17 March 2020

1. Foreword

2. Interruption of production activities and Market Abuse Regulation

3. Continuation of activities already started until 25 March

1. Extension of the deadline for convening meetings to 180 days

2. Procedure for conducting shareholders’ meetings: electronic voting (even exclusively)

3. Appointment of the designated representative