Generally speaking, one of the main obstacles to the development and fostering of such services in Italy is the lack of a proper financial education. As noted by CONSOB in its 2018 annual report, the financial skills of Italian consumers are particularly low. In this light CONSOB along with other competent authorities (Bank of Italy, Government, etc.) in 2018, has launched specific programs aimed at increasing the financial skills of Italian consumers to make financial services more attractive and to allow consumers to make informed investment decisions.
FinTechs providing loan or factoring services, loan broking services or finetrading shall obtain the authorization of the Bank of Italy required under Section 107 of the TUB for the carrying out towards the public of the activity of granting credits in any form. This is defined as the granting of credits, including the issuance of substitute guarantees as well as any other type of financing, such as finance leases, factoring, credit for consumers, etc. (Section 2 of the Decree of the Ministry of Economy and Finance no. 53 of April 2, 2015). To obtain the authorization, it is required, among others, that operators are incorporated either as joint stock company (società per azioni), limited partnership by shares (società in accomandita per azioni), limited liability company (società a responsabilità limitata) or cooperative (società cooperativa) and that they have their registered offices in the Italian territory. Specific rules shall however apply to the financial intermediaries established in an EU Member State. Moreover, operators are required to have a minimum initial capital equal to:
- EUR2 million when the operator provides financing services without issuing any guarantees;
- EUR1,2 million when the operator is incorporated as cooperative (cooperativa a mutualità prevalente) and provides financing services without issuing any guarantees;
- EUR3 million when the operator provides issuance guarantees services.
Authorized FinTechs may also be allowed by the competent authorities to provide electronic money services, payment services or investment services. They may also provide other types of activity in the cases permitted by the law, such as provision of and connected/instrumental activities.
As regards P2P lending platforms, the Bank of Italy clarified that such entities shall be authorized either as financial intermediaries, payment services institutions or electronic money institutions depending upon the specific characteristics of the provided services (among others, Bank of Italy Resolution of November 8, 2016 on the entities that collect savings different from the banks).
The 2018 Annual Report by the Control Body for agents and brokers in loans and other credit-related activities (“OAM”) shows that in 2018 there were 8552 of such intermediaries based in Italy (249 more than in 2017). Almost all of those are agents (being them 8253 out of 8552).
We do not envisage any new incoming regulation regarding online lending platforms in addition to the existing ones. Indeed, as also recognized by the Bank of Italy, a specific regulation may constitute an obstacle for the development of these services given the small dimensions of this market.
As regards P2P lending platforms, entities receiving the money through the platform should carefully draft the related contractual terms. Indeed, the Bank of Italy clarified that such recipients do not perform collection of savings reserved to banks only if they (i) negotiate the contractual terms with the lending entities and (ii) obtain money only from authorized entities, such as banks or insurances. On the other hand, P2P lending platforms should remain truly neutral by only connecting creditors with recipients (Bank of Italy Resolution of November 8, 2016 on the entities that collect savings different from the banks).