A Financial Activities Agent is a person who promotes and concludes contracts relating to the granting of financing in any form or the provision of payment services, on the direct mandate of financial intermediaries, payment institutions, electronic money institutions, banks or Poste Italiane (Italian Postal Service). They may only carry out the above-mentioned activity, as well as activities connected with or instrumental to it (see art. 128-quater, paragraph 1, of the TUB).
Financial agents carry out their activity on behalf of a single intermediary or of several intermediaries belonging to the same group. In the case where the intermediary only offers some specific products or services, the agent is however allowed, in order to offer the whole range of products or services, to take on two further mandates (cf. art. 128-quater, paragraph 4, of the TUB).
The principal is jointly and severally liable for the damages caused by the financial agent, even if such damages are the result of liability ascertained in a criminal court.
The contracts that may be concluded and promoted by the agent are those relating to the granting of loans in any form, for the identification of which reference should be made to art. 3 of Ministerial Decree no. 29 of 17 February 2009.
OAM Circular no. 3/12 indicates the "products" and "services" for which financial agents may receive the mandate from banking and financial intermediaries indicated in the first paragraph of art. 128-quater of the TUB.
In order to exercise the profession of Financial Activities Agent vis-à-vis the public, it is necessary to be registered in a special List kept by the OAM, after having met the requirements provided for by law.
The activities of insurance agencies and financial promoters are compatible, and can therefore be carried out by an agent in financial activities, without prejudice to the respective obligations of registration in the relevant list, register or roll (cf. art. 17, paragraph 4-bis, of Legislative Decree no. 141/2010).
The following does not constitute the exercise of financial agent activities:
- the promotion and conclusion, by suppliers of goods and services, of financing contracts solely for the purchase of their own goods and services on the basis of special agreements with banks and financial intermediaries. These contracts do not include those relating to the issue of credit cards;
- the promotion and conclusion, by banks, financial intermediaries, investment companies, asset management companies, SICAVs, insurance companies, payment institutes and Poste Italiane S.p.A., of contracts relating to the granting of loans in any form and the provision of payment services;
- the stipulation, by trade associations and Confidi (guarantee consortia), of agreements with banks, financial intermediaries and other parties operating in the financial sector aimed at facilitating access to credit for member companies. For the collection of financing requests carried out on the basis of said agreements, the associations can avail themselves of subjects in possession of the requirements provided for by art. 128-novies, paragraph 1, of the TUB (Consolidated Banking Act). What is provided for therein is extended to the service companies controlled pursuant to art. 2359 of the Civil Code, set up by the associations themselves for the pursuit of the association's aims;
- the promotion and placement of contracts relating to the granting of loans or the provision of payment services by financial advisors registered in the register - as per art. 31 of Legislative Decree no. 58/1998 - carried out on behalf of the same qualified entity that has appointed them as financial advisors. The qualified entity takes care of the professional training of its financial promoters, ensures their compliance with the regulations provided for under Title VI of the Consolidated Banking Act, and is liable for the damages caused by them in the exercise of the aforesaid activity, even if resulting from liability ascertained in a criminal court;
- the promotion and placement of contracts relating to the granting of financing in any form by insurance agents duly registered in the Single Register of Insurance and Reinsurance Intermediaries ("RUI") - as per art. 109, paragraph 2, letter a), of Legislative Decree no. 209/2005 - on the direct mandate of banks and financial intermediaries envisaged by Title V of the TUB. The mandating subject takes care of the professional updating of the mandated insurance agents, ensures their compliance with the discipline envisaged under Title VI of the TUB, and is liable for the damages caused by them in the exercise of the aforesaid activity, even if resulting from liability ascertained in a criminal court.
Registration on the list of agents in financial activities is not necessary for the collection of funds on behalf of subjects authorised to provide payment services, provided that the said activity is carried out on the basis of an outsourcing contract, which predetermines the methods of performance, is of a purely material nature and in no case is accompanied by disposition powers.
(cfr. art. 12 of Legislative Decree no. 141/2010)