ITALY Law and Practice Contributed by: Francesco Dialti, Vincenzo Cimmino, Valentina Bombino and Lucrezia Ghezzi, CBA Studio legale e tributario
as the circumstances in which they are deemed to be carried out vis-à-vis the public. In this regard, the Decree of the Ministry of Economy and Finance No 53 of 2 April 2015 (Regulation con- taining rules for financial intermediaries in the imple- mentation of Article 106, paragraph 3, Article 112, paragraph 3, and Article 114 of Legislative Decree No 385 of 1 September 1993, as well as Article 7 ter, paragraph 1 bis, of Law No 130 of 30 April 1999) (the “Decree”) is relevant. The Decree has implemented an extremely broad notion of lending activities. Article 2 of the Decree (Granting of financing activities in any form) provides as follows. “1. The activity of granting loans in any form means the granting of credit, including the issuance of guaran- tees and credit agreements for the issuance of guar- antees towards third parties. This activity includes, inter alia, any type of financing granted in the form of: (a) financial leasing; (b) purchase of receivables for a consideration; (c) consumer credit as defined in Article 121 of the Consolidated Banking Law; (f) issuance of personal guarantees, bankers’ drafts, documentary credits, acceptances, bank endorse- ment, undertaking to grant credit, as well as any other form of guarantees and commitments to issue guar- antees.” (d) lending secured by a mortgage; (e) lending secured by a pledge; In relation to the authorisation necessary to grant financing and to perform other banking activities, the Bank of Italy shall assess the existence of certain con- ditions to ensure the sound and prudent management. In particular, the following requirements must be ful- filled: • incorporation in the form of a joint stock company; • a registered office and headquarters in Italy;
• minimum share capital of EUR10 million (or higher if required due to the activities envisaged in the relevant programme of activities); • submission of the deed of incorporation together with the by-laws and a programme of initial activi- ties; • shareholders meeting certain requirements pro- vided by law; and • directors meeting certain eligibility criteria provided by law. 3. Structuring and Documentation 3.1 Restrictions on Foreign Lenders Providing Loans The exercise of financing activity in Italy, in any form, is reserved for banks and authorised financial inter- mediaries registered with a special register held with the Bank of Italy. Additionally, the EU passporting regime entitles a bank that is regulated in one EU member state to carry out banking activities recognised under the EU passport- ing regime in other EU member states. The passporting regime does not cover unregulated lenders or investment firms that wish to undertake lending activities in Italy on a cross-border basis. 3.2 Restrictions on Foreign Lenders Receiving Security There are no restrictions on foreign lenders benefiting from security or guarantees governed by Italian law. However, if the financing is not subject to imposta sos- titutiva (so-called substitute tax), which is discussed in 4.2 Other Taxes, Duties, Charges or Tax Considera- tions , substantial registration taxes, depending on the nature of the security and the features of the facility agreement, may apply. 3.3 Restrictions and Controls on Foreign Currency Exchange Italy has no foreign exchange controls. Restrictions may apply with respect to transactions involving specific countries (eg, countries with respect
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