CONSOB (the Italian Securities and Exchange Commission) has approved the regulations of the Italian Finance Services Ombudsman (Acf) via resolution No. 19602 of 4 May 2016.
The regulations enable Consob to activate a new system for the extra-judicial settlement of disputes, characterised by the compulsory adhesion of intermediaries and by the decision-making nature of the procedure. The aim is to provide an effective instrument for the direct protection of the investors' interests. The regulations were adopted pursuant to art. 2, paragraphs 5-bis and 5-ter of Legislative Decree No. 179/2007.
Access to the Ombudsman is entirely free of charge for the investor and reduced terms are provided for the attainment of a decision (90 days from completion of the file containing the appeal, the deductions and the documentation submitted by the parties).
Any disputes may be submitted to the Ombudsman (up to a requested amount of 500,000 EUR) relating to the breach of the obligations to provide information, diligence, fairness and transparency for which intermediaries are responsible in their relations with investors in the provision of investment and collective asset management services; disputes may also be filed with respect to the managers of equity crowd-funding portals.
For the transmission and management of the appeal, a telematic procedure is provided for so as to ensure the effective and prompt operation of the system. This will enable the investor to be guided during the stages for the establishment of the appeal, avoiding the potential transmission of incomplete or inconsistent requests. The system will allow for the sharing in real time of all documents produced by the parties in the course of the procedure, ensuring the swift and economic fulfillment of the requirements. However, in order to meet the needs of those who are less familiar with IT tools (and who do not intend to rely on the support of public prosecutors or consumer associations), it will be possible to transmit the appeals in a paper-based form for a two-year period.
The procedure enables investor and intermediary alike to represent their reasons, thus fully providing them with the opportunity to set out their views on the matter, and shall be closed with a decision of the Ombudsman who, upon giving final judgement entirely or partly in accordance with the investor’s claims may establish, at the expense of the intermediary, the obligation to compensate for damages suffered, namely the costs incurred for the completion of the acts deemed necessary.
The panel's decision is not binding for the investor, who may in any case resort to the judicial authority. Should the intermediary fail to execute the decision taken, the reputational sanction of the publication of such non-compliance is provided for against him/her.
The organisational structure of the Ombudsman is broken down into a decision-making panel and a technical secretariat of Consob endowed with a support function.
The composition of the arbitration panel reflects the need to internally represent the various interests concerned. Hence, aside from the chairperson and two members appointed directly by Consob, the other two members are always appointed by Consob following nomination, respectively, by the Italian National Council of Consumers and Users (Cncu) and by the most representative trade associations of intermediaries.
On the Consob website, in the Regulations section, is published the text of the regulations with the relative resolution, namely the document pertaining to the results of the consultation - in conjunction with the report elucidating the repercussions of the new legal measure on the regulations, on the activity of enterprises and operators and on the interests of investors and savers, as provided for by art. 23, paragraph 2, of Law No. 262/2005 - as well as the contributions arising from the consultation.