Disclosure Requirements - Italy
Disclosure Category 1
For holdings in Italian securities, there is a legal obligation on Clearstream Banking to disclose information including, without limitation: identity and holdings of ultimate beneficial owners, identity and holdings of customers [quantity of positions and/or number of subscribers].
The identity of the ultimate beneficial owners must be reported to the issuing Company at the time of any event in which the obligation of reporting/disclosing the ownership name is mandatory.
The heading must report (Art 4 RD 239/42):
a) for individuals: name, surname, date and place of birth, address and nationality;
b) for legal entities: full company name and registered address of the company;
c) for legal entities without “legal personality”: full company name, registered address of the company, personal data of the representatives (name, surname, date and place of birth, address and nationality)
There is, in addition, an obligation on Clearstream Banking to disclose to issuers, on payment, its customers’ dividend entitlements, even where no relief from withholding tax is sought.
Customers who hold Italian securities in Clearstream Banking consent and are hereby deemed to consent to disclosure to the requestor and to the appointment of such requestor as their attorney-in-fact to collect from Clearstream Banking such information as is required to be disclosed. Customers who do not want to grant such authority to Clearstream Banking should refrain from holding such securities in their account with Clearstream Banking.
Customers are advised that local laws and regulations require Clearstream Banking to disclose, to issuers, their agents and the Italian authorities, securities trading and holding information and the identity of the ultimate beneficial owners of certain securities.
Therefore, customers who hold Italian securities in Clearstream Banking must provide Clearstream Banking, upon request and as soon as possible, with information about the beneficial ownership of these holdings, in which case customers are deemed to have obtained, directly or indirectly, the necessary consent from the relevant beneficial owners. Clearstream Banking may disclose to the requestor the identity of customers who are not in a position to provide such information when requested.
Background and legal basis
Article 83-novies of Legislative Decree 58/1998 (TUF) as well as article 26 of the Rules governing central depositories, settlement services, guarantee systems and related management companies (adopted by the Bank of Italy and CONSOB on 22 February 2008), require intermediaries (in this case, Clearstream Banking) to disclose to issuers or their agents:
- The names of persons requesting the statements envisaged in article 83-sexies in order to attend shareholder meetings;
- The names of persons requesting the certificates envisaged in article 83-quinquies, paragraph 3, in order to be entitled to exercise the other rights pertaining to the financial instruments;
- The names of persons who have received dividends and those who, exercising option rights or other rights, have acquired ownership of registered financial instruments, specifying the related quantity.
Furthermore, according to article 83-duodecies of Legislative Decree 58/1998, Italian companies with shares admitted to trading on a regulated market or on multilateral trading facilities may ask from custodians, at any time, the identification data of the shareholders who have not expressly prohibited the disclosure of the same, together with the number of shares registered in the accounts payable to them. Issuers shall record such information in their shareholders’ register. Therefore, customers that hold Italian financial instruments in Clearstream Banking should provide Clearstream Banking with information about the beneficial ownership of these holdings.
With reference to the solicitation procedure, according to article 136 of the Regulation on Issuers adopted by CONSOB under resolution 11971 of 14 May 1999, intermediaries shall, upon request of a promoter, communicate receipt of the request, using computer support and within three business days from receiving the request, the identification details of the following:
- Parties that have voting rights and have not expressly prohibited communication of their details in relation to which they operate as final intermediaries, in addition to the number of shares of the issuing company registered on the respective accounts;
- Parties that have opened accounts as intermediaries and the quantity of shares of the issuing company respectively registered on the said accounts.
According to the DPR 600/1973, Legislative Decree 239/1996 and DPR 461/1997, the same information must be disclosed to the Italian Tax Authorities for tax purposes. Please also refer to the Clearstream Banking Market Taxation Guide - Italy.
Directive (EU) 2017/828 of 17 May 2017 amending Directive 2007/36/EC with regard to the encouragement of long-term shareholder engagement (the second shareholder’s rights directive “SRD II”) has been transposed into Legislative Decree No 49 in 10 May 2019 (SDR II Law).
Obligation to report threshold crossings
The relevant regulatory framework of the subject disclosure requirements is constituted by article 120 of TUF and articles 117, 117-bis, 118, 119, 119-bis, 119-ter, 120, 121, 122 and 122-bis of the Regulation on Issuers adopted by CONSOB under resolution 11971 of 14 May 1999, as amended time by time.
Persons who participate in the share capital of a listed issuer shall inform the investee company and CONSOB in the following circumstances:
- The threshold of 2% is exceeded;
- The thresholds of 5% 10%, 15%, 20%, 25%, 30%, 35%, 40%, 45%, 50% 66⅔%, 75%, 90% and 95% are reached or exceeded;
- The holding falls below the thresholds specified above.
These obligations also apply to the following:
- Shareholders whose holdings reach, exceed or fall below these thresholds as a consequence of events that involve changes in the share capital;
- Issuers of listed shares in relation to treasury shares held directly or via subsidiary companies.
For the purpose of the subject disclosure requirements, only voting shares are considered for the calculation of ownership and thresholds, even if the voting rights belong to or are assigned to third parties or are suspended. Holdings are also considered to be those shares in relation to which the voting right is due or is assigned to a party, if one or a combination of the following cases apply:
- The voting right is due in the capacity as pledgee or usufructuary;
- The voting right is due in the capacity as depository, provided that said right can be discretionally exercised;
- The voting right is due by virtue of proxy, provided that said right can be discretionally exercised in the absence of specific instruction provided by the delegant;
- The voting right is due on the basis of an agreement that envisages its provisional and remunerated transfer.
Disclosure must also be made by those who hold potential holdings subject to purchase, directly or via nominees, trustees or subsidiary companies, where the holding reaches or falls below the threshold of 2% and/or reaches, exceeds or falls below the thresholds of 5%, 10%, 15%, 20%, 25%, 30%, 35%, 40%, 45%, 50% and 75%.
Those who hold an effective holding or a potential holding subject to purchase greater than 2% shall inform the investee company and CONSOB of the holding of potential holdings subject to sale, directly or via a third party, trustee or subsidiary company, when the underlying shares exceed or fall below the thresholds of 2%, 5%, 10%, 15%, 20%, 25%, 30%, 50% and 75%.
For the purpose of the calculation of the potential holdings, the shares underlying the financial instruments assigned to the purchase option shall be calculated separately from those underlying the financial instruments assigned to the right to sell.
Shares acquired by exercising conversion rights or warrants shall be included in the calculation for these purposes only if the acquisition can be made within sixty days.
Beneficial owners must notify the participating listed company and CONSOB without delay and in any event within five business days of the date of the transaction leading to the obligation, regardless of the date on which it is carried out, or of the date on which the obliged party has been informed of the events that involve changes in the share capital.
Disclosure shall be made using the forms contained in annex 4A and observing the instructions contained in annex 4B, which are available at http://www.consob.it/ under legal framework/laws and regulations.
The subject disclosure obligations shall not apply in the cases listed in article 119-bis of TUF and, in particular, as follows:
- To those who acquire the shares exclusively for the purpose of offsetting and settling transactions covering said shares within a maximum deadline of three trading days after the transaction; or to central counterparties for the shares covered by the transactions that it guarantees and subjects to executive procedures, within the time limits required for the completion of said procedures;
- To those who hold the shares within the sphere of the provision of the share custody service, provided that the latter can only exercise the voting rights pertaining to said shares in accordance with the instructions provided in writing or via electronic medium by the shareholders due the voting right, with the consequence that local and foreign intermediaries holding securities in custody on behalf of final beneficial owners do not have to monitor and report threshold crossings unless such custodians can exercise at their own discretion the voting rights attached to securities held in custody (which Clearstream Banking cannot).
The regulator CONSOB may, at any time in the course of investigations into threshold crossings, ask intermediaries to disclose shareholder details. If such a request is received by Clearstream Banking, disclosure would be viewed as a legal requirement for which the consent quoted above is deemed to have been given.
Failure to comply with the obligations provided for above shall be punished by civil and administrative sanctions.
With reference to the above-mentioned disclosure requirements, article 190 of TUF provides that persons performing administrative or management functions of intermediaries shall be punished by a pecuniary administrative sanction of between EUR 2,500 and EUR 250,000 for failure to comply with the provisions of articles 83-novies and 83-duodecies TUF, and provisions issued on the basis thereof.
With regard to non-compliance with the obligation to report threshold crossings, please note the following:
- Voting rights attached to listed shares or to financial instruments that have not been notified pursuant to article 120 TUF may not be exercised. In the event of failure to comply with this prohibition, any resolution or other act adopted where the votes or other contribution of the shareholdings referred to as major holdings were decisive may be challenged under the Civil Code. The challenge may also be initiated by CONSOB within 180 days of the date of the resolution.
- The administrative sanction applied in such a case is imposed as follows:
- For a reporting delay of up to two months: a fine in the range EUR 5,000 to 500.000;
- For a reporting delay of more than two months: a fine of between EUR 25,000 and EUR 2.5 mn.
Shareholder identification as set out in the SRD II Law
The SRD II Law provides for the right for issuers to identify their shareholders.
Issuers can request intermediaries at each level of a custody chain to promptly provide relevant information to facilitate such identification.
Local law introduces a threshold of 0.5% for Shareholder Identification.
In accordance with the SDR II Law as amended, an intermediary (in this case, Clearstream Banking) shall, upon receipt of the shareholder identification disclosure request, transmit similar request to the next intermediaries in the custody chain (that is, Clearstream Banking customers with holdings in the requested securities). A response to the shareholder identification disclosure request shall be sent by every intermediary in the custody chain directly to the recipient's address defined in the request and without delay. Clearstream Banking will generate the response as required, with information regarding shareholder's identity, limited to Clearstream Banking books only.