The Italian Consiglio di Stato (a jurisdictional Court with competence to issue non binding opinions on matters of public law) has recently affirmed, in an opinion issued upon the request of the Italian Antitrust Authority, that financial intermediaries are not subject to discipline for aggressive, unfair and misleading conduct under the Consumer Code (implementing the European Unfair Commercial Practices Directive 2005/29/EC). According to the opinion financial intermediaries should, in fact, be subject only to the conduct rules contained in specific financial market legislation.
According to the Consigilo di Stato, financial intermediaries do not come under the jurisdiction of the Antitrust Authority (which has authority for the enforcement of discipline under the Consumer Code) but are subject to supervision by the authority for financial markets (CONSOB) and its sanctioning powers.
It is worth noting that the opinion of the Consiglio di Stato is not binding - even upon supervisory authorities - despite being considered authoritative. However, some Tribunali Amministrativi Regionali (TAR), who have competence on public law matters, have followed the decision of the Consiglio di Stato and rejected the Antitrust Authority’s competence.
The opinion is expected to be applied to insurance companies and intermediaries. As a consequence, any aggressive, unfair or misleading behaviour will not be subject to sanction by the Antitrust Authority but only subject to the supervisory powers of ISVAP and to any laws specific to the insurance sector (except in the area of distance selling practices which remain in the competence of both authorities). This might be considered good news for the insurance sector given the very restrictive approach adopted by the Antitrust Authority in relation to some areas (such as distance marketing of financial products), and the lower sanctions applied by ISVAP.