Organismo per la gestione degli Elenchi degli Agenti in attività finanziaria e dei Mediatori creditizi
As a preliminary point, it should be noted that OAM («Organismo per la gestione degli Elenchi degli Agenti in attività finanziaria e dei Mediatori creditizi»), as foreseen in the document attached (published at https://ec.europa.eu/info/system/files/mortgage-credit-national-competent-authorities_en.pdf) is the authority designated for ensuring the application and enforcement of Articles 29, 32, 33 and 34 of the Directive 2014/17/EU (Mortgage Credit Directive – «MCD»).
Subsequently, OAM confirms that the Joint Committee Guidelines should apply to authorities competent for supervising credit intermediaries, with a view to establishing consistent, efficient and effective supervisory practices within the European Union under the MCD.
Therefore, OAM is of the view that the Joint Committee Guidelines should be directed to credit intermediaries, specifically «agenti in attività finanziaria» (Tied credit intermediary, Article 128-quater of the legislative decree 385/1993, Consolidated Law on Banking – TUB) and «mediatori creditizi» (Non - Tied credit intermediary, Article 128-sexies of the Consolidated Law on Banking - TUB).
However, OAM points out that the definition of credit intermediary was introduced in 2008 by the Directive 2008/48/EC on credit agreements for consumers which establishes that certain provisions apply to natural and legal persons (credit intermediaries) who, in the course of their trade, business or profession, for a fee, present or offer credit agreements to consumers, assist consumers by undertaking preparatory work in respect of credit agreements or conclude credit agreements with consumers on behalf of the creditor (see recital 16).
The credit intermediaries thus provide their services not only within the mortgage credit consumer sector but also in the credit agreements for consumers.
In the light of above, OAM is wondering whether the Joint Committee Guidelines also apply to competent authorities while supervising the credit intermediaries which provide their services for credit agreements different from credit agreements for consumers relating to residential immovable property.
If so, at point 10 of the Joint Committee Guidelines should be added a specific reference to the mentioned directive 2008/48/EC.
The legislative decree 385/1993 - Consolidated Law on Banking («TUB») - provides that the Tied credit intermediaries («agenti in attività finanziaria») could be both natural and legal persons (Article 128-quinquies of the Consolidated Law on Banking) while the Non Tied credit intermediaries («mediatori creditizi») must be only natural legal persons (see Article 128-septies, of the Consolidated Law on Banking).
OAM agrees with EBA on the fact that credit intermediaries, specifically the Tied credit intermediaries, could be often very small, comprising of one or two persons only, and might therefore not have the capacity to incorporate the requirements of the Joint Committee Guidelines in their internal practices and procedures in the same manner as larger entities.
In this regard, OAM specifies that, in its regulatory and supervisory activity, it will take into due consideration the fact that for a small Tied credit intermediary, the adoption of a complaint procedures may involve the introduction of high administrative burdens. For this reason, OAM, in accordance with EBA, will apply the Joint Committee Guidelines in the light of the principle of proportionality and any other relevant circumstances useful for an overall assessment, including, for instance, the concrete activity carried out (nature, scale and complexity) as well as the sustainability and the organization of the business.
In this regard, OAM points out that that the control of the listed requirements of the Joint Committee Guidelines (complaint management policy, complaints management function, registration, reporting, internal follow-up of complaints-handling, provision of information, procedure for responding to complaints) should be carried out in the light of the principle of proportionality and any other relevant circumstances useful for an overall assessment, including, for instance, the concrete activity carried out (nature, scale and complexity) as well as the sustainability and organization of the business.