Payment Institutions and E-Money Providers
Prior to Directive 2007/64/EC of The European Parliament and of the Council of 13 November 2007, the framework of the payment services markets of the Member States was fragmented into 27 national legal systems.
Since the adoption of the Directive, payment services can now be provided in the EEA by new entities and are no longer exclusively covered by the monopoly of credit institutions.
As an international law firm with three offices in Italy (Milan, Rome and Palermo,) Giambrone is exceptionally well placed to offer specialist assistance to PSPs from any one of the 27 EU counties wishing to establish and operate in Italy.
We are very familiar with payment/fund transfer processes, privacy issues, data protection, consumer protection matters, anti-fraud issues, anti-money laundering controls and corporations laws.
Directive 93/22/EEC of 10 May 1993 on investment services ("ISD"), adopted the approach of effecting only the essential harmonisation necessary and sufficient to secure the mutual recognition of authorisation and of prudential supervision systems. This made it possible to grant a single authorisation valid throughout the Community and to apply the principle of Home Member state supervision. By virtue of mutual recognition, investment firms authorised in their home Member States may provide any or all of the services covered by the ISD for which they have received authorisation throughout the Community by establishing branches or under the freedom to provide services.
Directive 2004/39/EC of 21 April 2004 ("MiFID") has adopted the approach of enhancing the degree of harmonisation in order to offer investors a high level of protection and to allow investment firms to provide services throughout the Community on the basis of home country supervision.
According to EC directives and to Italian Legislative Decree No. 58 ( "Consolidated Law on Finance") services subject to mutual recognition shall mean the following activities and services:
Investment services and activities:
- reception and transmission of orders in relation to one or more financial instruments
- execution of orders on behalf of customers
- dealing for own account
- portfolio management
- investment consultancy
- subscription and/or placement of financial instruments with firm or standby commitment to the issuer
- placement of financial instruments without firm or standby commitment to issuers
- management of multilateral trading systems
- safety deposit box rental and the administration of financial instruments on behalf of customers, including custody and related services such as cash/security guarantees
- allocation of credit or loans to investors in order to perform a transaction relating to one or more financial instruments, involving the company granting the credit or loan
- business consultancy on capital structuring, industrial strategy and related matters, together with consultancy and services in relation to business mergers and takeovers
- exchange service where such service is linked to the provision of investment services
- investment research and financial analysis or other forms of general recommendation regarding transactions on financial instruments
- related services with firm commitment
We offer the following services to payment institutions, e-money providers and investment firms:
- monitor compliance with Italian laws and regulations
- assist with licenses and approvals to operate in Italy
- develop and maintain compliance policies and procedures suitable for Italy and in line with group-wide policies
- ensure compliance with the relevant privacy laws and data protection laws, license requirements and other relevant laws and regulations
- define and manage AML and KYC procedures
- monitor and investigate fraud matters and suspicious transactions
- respond to day by day regulators' inquiries
- respond to internal regulatory and compliance issues
- review local marketing materials for compliance purposes
- conduct compliance training to internal employees
- coordinate with the directors in Italy to manage company secretarial matters
- support with ad-hoc compliance projects
- implement and maintain the company's monitoring process
- implement and maintain the standard forms agreement to be entered into with consumers and merchants and partnership cooperation agreements helping and assisting the management to negotiate favorable term and conditions.
Giambrone has extensive experience in financial services, payments services, e-money, and securities sectors as well as Italian administrative liability of entities (Law Decrees 231/2001 and 121/2011), anti-money laundering law, usury law and data protection law.
What advantages can a payment service provider expect by instructing Giambrone?
- a proven track record of advising clients in all types of finance transactions
- versatility and unmatched capability in providing clients with solutions at the highest level
- the ability to work with limited supervision and experience of delivering on own initiative
- experience in dealing with local regulators (Bank of Italy, CONSOB, IVASS) and with government officials
- excellent written and spoken communication skills with a high level of fluency in Italian, English, German, French and Spanish
In addition our practical approach helps us to maintain reasonable fees, while providing high-caliber service to our clients. We are willing to work with each client to develop a fee structure that accommodates its specific needs, including:
- hourly fees: generally, we bill based upon the hourly rate of each team member and the actual time devoted to the client. We always provide a detailed invoice describing the work performed
- flat fees: this fee structure allows a client to precisely budget for legal expenses. Upon request, we will work with a client to develop a flat fee that addresses routine monthly business or specific legal tasks. Under this arrangement, we will bill for services outside the flat fee agreement on an hourly basis
- no-cost transition: to reduce transition costs for our new clients, we will be able to waive fees for our initial review of the client's files
Our experience has included representing banks, institutional investors, e-money providers, payments institution, SGR, financial intermediaries, umbrella funds, private equity firms, real estate funds, in a wide range of international domestic transactions and activities.
We have represented:
- a US and European payments institution for the past ten years in respect of its activities in Italy, including advising on regulatory compliance, organisational structure, supervision of the Italian regulators, anti-money laundering, usury law and data protection issues;
- a UK bank for the past ten years in respect of their financial activities in Italy, including in connection with most of their acquisitions, partnerships, authorisations, banking and finance transactions;
- a UK bank in the establishment of an SGR (Italian asset management company), and the subsequent legal issues relating to its asset management and financial services activities. The advice includes regulatory compliance, organisational structure, supervision of the Italian regulators, anti-money laundering, usury law and data protection issues, etc;
- international banks, asset management companies and investments firms in carrying out their activities in Italy including carrying out the authorisation procedures, taking care of the relationships with the Italian competent authorities (Bank of Italy and CONSOB), regulatory compliance, establishing the organisational structure in Italy, drafting advertisements, legal opinion and memorandum on anti-money laundering law, usury law and data protection law;
- major Italian banks and SGRs in the proposed reformation of several provisions of the regulation of financial activities on Italy;
- the Ministry of the Treasury on several transactions, involving privatisations, banking and structured finance issues;
- a French bank on several financing transactions and on several structures for the repackaging of notes collateralised through ABS (synthetic securitisation), through an SPV established pursuant to Law No. 130/99.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.