OAM: ALSO AGENTS IN FINANCIAL ACTIVITIES WILL HAVE TO ENSURE THAT THEIR EMPLOYEES AND COLLABORATORS COOPERATE WITH THE SUPERVISION OF THE BODY

Objective to be achieved through specific contractual clauses. Communication to the market following the publication of the Guidelines on internal controls for credit brokerage firms.

All those registered in the Lists, including agents in financial activity, must ensure that their employees and collaborators in contact with the public cooperate with the OAM, Organismo Agenti e Mediatori, when it carries out supervisory activities, also using appropriate contractual clauses. This is stated by the OAM in a Communication to the market that follows the recent publication of the Guidelines on internal controls for credit mediation companies.

The Communication stresses the need for the OAM to "ensure the proper and timely exercise of controls with respect to the requirements that directly affect the collaborators and employees of the registered subjects". For this reason, agents, in addition to brokerage firms, must ensure "that their own distribution network is in a cooperative position" with respect to the OAM, making "promptly available the documents and information requested by the Body as part of a specific supervisory activity". The objective is to be pursued by the Agents "also through the provision of appropriate contractual clauses governing the relationship with their employees and collaborators in contact with the public".

The Communication recalls that, on the basis of the Consolidated Banking Law, "the Agents and Brokers are obliged to guarantee that their own employees and collaborators, of whom they avail themselves for contact with the public, respect the discipline of the sector which is directly applicable to them, answering jointly and severally for the damage caused by them in the exercise of the activity, also in relation to criminally sanctioned conduct".

OAM: CREDIT BROKERS MUST COMMUNICATE TO CUSTOMERS THE IMPOSSIBILITY OF RESORTING TO THE BANKING AND FINANCIAL ARBITRATOR IN CASE OF DISPUTES

Credit brokers must clearly communicate to customers that, should disputes arise within the contractual relationship established, they will not have recourse to the banking and financial arbitrator

This is underlined by the OAM, Organismo Agenti e Mediatori, in a communication to the market, in light of some divergent behaviors found within the supervisory activity. In particular, it has emerged that some credit brokers propose to the customer - in the information leaflets or in the complaints section of their website – the possibility, in the event of failure or unsatisfactory response to the complaint submitted, to resort to the Banking and Financial Arbitrator to resolve the dispute that has arisen in the relationship with the broker.

 

The OAM points out that, according to the regulations in force, the subjects that adhere to systems for the out-of-court settlement of disputes with clients regarding banking and financial transactions and services do not include credit brokers and financial agents. These categories must therefore make it clear, in a transparent and immediate manner, in the pre-contractual documentation and on their own website in the complaints area, that the client cannot resort to the Banking and Financial Arbitrator to resolve disputes arising with the credit intermediary.

 

However, Mediators are obliged to make available to clients or to transmit in electronic format the Practical Guide on the Arbitro Bancario Finanziario, drawn up in accordance with the model published on the website www.arbitrobancariofinanziario.it.

 

The OAM will oversee the correct application of the regulations in force and will inform the Bank of Italy of any relevant issues.

TRANSFER OF 1/5th - OAM WARNING TO CREDIT INTERMEDIARIES: IN CASE OF EARLY REPAYMENT THE CONSUMER MUST BE GUARANTEED CORRECT AND COMPLETE INFORMATION

Communications from the financer with whom the financing is extinguished must be sent directly to the client until the closure of the relationship. The consequences of revoking the data processing must be clearly explained in order to obtain an informed consent of the consumer

Clarification of the OAM by means of a compliant indication directed at credit intermediaries regarding the assignment of one fifth of the salary or pension. With a communication to the market, the Body for the management of the Lists of financial agents and credit brokers, underlines, in order to protect the consumer, that it is not possible, when proposing early repayment, to impose or suggest to the client methods of transmission of the extinction calculations that exclude him from the relationship with the financer. Moreover, the consequences of a possible withdrawal of consent to data processing for commercial purposes must always be clearly and explicitly explained to the customer. In fact, only correct and complete information accompanying the proposals for renewal of the assignment of one fifth of the salary or pension can guarantee the free choice of the consumer who intends to pay off his debt early.

The communication stems from certain behaviors detected during the supervisory activity carried out by the Body. In particular, it emerged that some financial agents and credit brokers sometimes do not limit themselves to offering the customer the possibility of paying off the loan in progress in order to renew it on more advantageous terms with another credit institution, obtaining the reimbursement of the charges not accrued connected with the duration of the contract. On the other hand, the request for a repayment statement to the financer is accompanied by a declaration in which the client revokes their consent to receive communications or contacts for promotional or advertising purposes and by the request to transmit all subsequent communications to the credit intermediary. The intermediary thus becomes the sole point of reference for the closure of relations with the lender, who is precluded from contacting the client directly, even if only to inform him of how to obtain a rapid refund of the installments not due.

In the aforementioned Communication, the OAM recalls that it has already intervened on the subject, clarifying that credit intermediaries cannot offer consumers consultancy and assistance services to lodge complaints with the bank or forward recourse to the Banking and Financial Arbitrator for the recovery of charges not accrued in the event of renewal of the " transfer of the fifth": in fact, this activity does not fall within that of the "accessory services" that intermediaries, on the basis of current legislation, can legitimately carry out. The Bank of Italy, subsequently, also intervened with supervisory guidelines aimed at "ensuring that the client receives full and complete information on the progress of the relationship and guaranteeing protection from opportunistic (if not illegitimate) conduct on the part of self-styled "delegated" subjects".

The communication underlines that the verification of the correct application of the regulations in force falls within the supervisory activities on the work of credit intermediaries entrusted to the Body, which will involve the Bank of Italy and the Antitrust Authority for any profiles of competence.

BROKERAGE: OAM SETS THE LIMITS TO THE ACTIVITY OF ACCOUNTANTS IN FACILITATING ACCESS TO CREDIT FOR THEIR CUSTOMERS: ADVICE ON FUNDING CAN NOT BE OFFERED

Outside these boundaries professionals would be performing unauthorized activities reserved for credit brokers

The OAM (Organism for the management of lists of Financial Agents and Credit Brokers) clarifies, with a communication to the market, which are the activities that accountants can perform in the credit market: the need arises from the recent agreements signed between the territorial orders and some banks. Outside the boundaries outlined by the Organism, professionals would carry out abusively the activity reserved for brokers, violating art. 140-bis of the Consolidated Banking Act: this is a criminal case that can be denounced by any subject, even non-institutional, to the competent judicial authority.

The Organisation reiterates that the presentation and illustration of financing products to businesses, even only in the form of generic advice on the credit line, is reserved for those registered in the OAM lists.

The agreements that have become widespread in the market offer companies that intend to present financing requests, through personalized assistance from the accountant, a communication service through a "dedicated channel" with the bank, a simplification of the process for the presentation of the preliminary documentation, and the possibility of being accompanied by the accountant himself to the appointment with the bank.

The OAM clarifies that the consultancy offered by accountants must be limited to fiscal and accounting assistance and must not in any way encroach on the activities reserved for credit brokers. Similarly, in the event that the professional accompanies the company to the bank, he may provide assistance only for the preparation and compilation of the set of fiscal and accounting documents. This service must, however, be exceptional and extraordinary: the presence of the accountant is not essential and could create confusion with respect to the role of the credit intermediary at the time of the meeting with the bank.

CREDIT BROKERS OPERATING VIA THE INTERNET MUST ENSURE PRE-CONTRACTUAL AND CONTRACTUAL TRANSPARENCY IN A TIMELY MANNER

Communication to the market of the Organisation to protect customers

Credit brokers operating via the internet must comply with the transparency obligations imposed by law by making available to customers, even through the same channel, the required documentation. This is clarified by the OAM, the Body for the management of the Lists of Financial Agents and Credit Brokers, in a communication to the market. The obligation concerns, first of all, the documentation relating to the pre-contractual information on credit mediation, that relating to the products or services presented, and the explanatory guide on the products offered if provided for: it is not sufficient that the documents are present on the site but it is necessary that the mediator adopts mechanisms able to guarantee the effective examination by the client in due time, before the same is bound to the offer or contract. For example, blocking mechanisms could be inserted that prevent the continuation of the exposition and offer process if the user does not download the documentation.

The credit mediation contract must also be provided to the client on paper or on another durable medium, using email if necessary but ensuring that the contract is duly signed.

Similarly, and limited to the sector of real estate credit to consumers, the credit broker operating via the internet can make available to the client the European Standardised Information Prospectus (PIES), the delivery of which must in any case be ensured by the lender prior to the stipulation of the contract. Obviously, the obligations of the credit broker to communicate to the financer the remuneration received by the client, and to the client the receipt of any remuneration from the financer, even when no additional charges to the overall costs of the financing are envisaged, remain in place.

FOR MEMBERS AND EMPLOYEES/COLLABORATORS THE SELF-DECLARATION IS SUFFICIENT TO CERTIFY THE INTEGRITY REQUIREMENT. THE FORM TO BE USED IS AVAILABLE ONLINE

The Organization will be able to verify the truthfulness at any time, starting, in case of untrue statements, the necessary initiatives with the judicial authorities

In order to certify the requisite of integrity of members and collaborators in contact with the public, it will be sufficient to acquire an annual self-certification by filling in the form available on the OAM website. This is clarified by the Body of Financial Agents and Credit Brokers in a communication to the market. The procedural simplification does not relax the control obligations on members who, as required by law, will still have to adopt internal procedures for verifying the integrity requirements of their employees. The Body will also be able, at any time, to verify the possession and permanence of the requirement itself.

Communication n. 23/19

Press Release

Substitute declaration of integrity form