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The Consob arbitrator asks intermediaries to pay more attention to their customers

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The Consob arbitrator asks intermediaries to pay more attention to their customers

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Man, no longer very young and living in the North. This is the identikit of the person who appeals to the Arbitrator for financial disputes on the subject of investments, as emerges from the ACF report for 2024 (see Plus 24 of 30 March 2024), presented on 18 April in Rome by president Gianpaolo Edoardo Barbuzzi. One of the salient data of the activities relating to 2023 is the fact that the number of appeals fell below one thousand (which was also the original estimate on which the ACF structure was “based”).
Compared to this often elderly customer, the ACF recommends greater attention, also in terms of time on the part of intermediaries, especially in the profiling phase: it is no coincidence that the case of an over eighty-year-old who had been attributed an advanced profile is cited, with long-term investments, the profiling of which appears to the referee to be “at least superficial, if not of an opportunistic and instrumental tone”.

The numbers

In 2023, 963 appeals were therefore received by the ACF, although 1,237 were subsequently resolved, partially clearing the backlog accumulated in previous years, with compensation for customers exceeding 13 million euros. Especially in the first years of activity, the ACF had been hit by the “after-effects” of the serial dispute relating to the placing of the Venetian banks and the resolved banks under LCA, once this wave had passed the situation settled towards numbers that were considered more physiological.
In any case, in the seven years of activity of the ACF, over 10,250 proceedings have been concluded. The percentage of acceptance of appeals remains high: 56.8 percent. A notable percentage even if compared to an aggregate average, referring to seven years of activity, of 64.1%. At the end of 2023, the total sums recognized so far in favor of savers will reach 156 million euros, with an average value of compensation of almost 35,000 euros per capita (the average requests, however, stand at around 56 thousand euros, which drops to around 50 thousand for successful appeals). Furthermore, the percentage of voluntary execution of decisions by intermediaries remains high – net of certain serial lines that are definitively being exhausted – 95.5% of appeals are carried out by the interested parties. Furthermore, in 2023, 86 intermediaries were called to answer for their actions before the Arbitrator, thus bringing the total of intermediaries involved from 2017 to today to 238. This, compared to the 1,325 intermediaries participating in the Acf system.

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Profiling and suitability

The ACF reproaches intermediaries for an attitude – as already mentioned – of little attention to the customer profiling phase, asking that suitable measures be adopted to verify the reliability, accuracy and coherence of the information collected (and which the customer must provide so that they are correct, updated and complete). To do this, according to Barbuzzi: «The questionnaire must be based on a series of appropriate, coherent and consequential questions, such as to bring out the real profile of the investor.
For this purpose, it is desirable that intermediaries converge towards a standard and generally used profiling questionnaire format, based on which we are available to provide our contribution of experience”. The suitability assessment can also be done (and should be done) better: «It fulfills its proper function only if it is the expression of a motivated and non-apodictic judgement, which clearly illustrates the reasons why the investment is considered coherent with the client’s objectives, accounting for the information used for this purpose and avoiding resorting only to generic expressions.
If pre-formulated declarations are used, care must be taken to ensure that they are sufficiently granular. On these assumptions, consultancy relationships characterized by a generalized use of standardized expressions, which end up debasing the purposes of the act, cannot be said to be functional for the purpose”.

The ambiguous clauses

The ACF also denounces the use of some contractual provisions «which are characterized by the total exemption from liability of the intermediary in the event of malfunctions of the platform for online operations, without the indication of terms for restoration, nor of alternative channels to guarantee operational continuity”. An unappealable judgment on this profile: «Regardless of profiles of possible vexatiousness – states Barbuzzi -, predictions of this kind reveal themselves, in the current and non-reversible phase of migration of transactions on the web, first of all anachronistic and, in any case, end up transform the client’s position from a weak contractor to a hostage indefinitely. Furthermore, in a context – that of financial markets – in which the time factor is so decisive that seconds weigh like hours, hours like days, and so on”.

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Better accompanied

The majority of appellants (over 60 percent) are assisted by a professional – generally a lawyer -. This is despite the fact that the presence of a “defender” is not necessary to appeal to the ACF, as the interested party can appeal alone. But apart from the known financial shortcomings of investors, there is also the question of the relevance of the amounts at stake (as mentioned above) and the complexity of the matter addressed by the Arbitrator. However, it must be said that if you think that the situation requires the presence of a defender, it is better to involve him right from the complaint to the intermediary, which is a condition for then turning to the arbitrator. In fact, the complaint and the appeal must concern the same issues.
Furthermore, in a recent conference in Milan, during the Salone del Risparmio, President Barbuzzi also asked for greater intervention on the part of consumer associations, which in many cases can be a valid help for the appellants.

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