Rivista del Diritto Commerciale e del diritto generale delle Obbligazioni

Abstract: In Italy, initiatives concerning ethical finance have significantly anticipated sector legislation due to the cooperative effort made by some Italian not-for-profit organizations, that in 1998 set up Banca Popolare Etica S.c.p.a., which has proposed itself as a banking institution whose activity is inspired by principles and values typical of “ethically oriented finance” since the beginning. --- Article 111-bis of the Consolidated Law on Banking, introduced at the end of 2016, now includes, among the subjects authorized to perform banking activities in Italy, the ethical and sustainable finance banking operators, defined on the basis of the compliance of their business to some principles, which are: transparency in granting loans, evaluation of borrowers according to internationally recognized ethical standards, adoption of a governance system with a strong democratic and participatory orientation and remuneration policies for top management characterized by a significant sobriety. Although on one hand article 111-bis is crucial since it allowed to lay the foundations for the imitation of the model of Banca Popolare Etica, and to avoid the abuse of commercially appealing terms such as “ethics” and “sustainability”, on the other hand, it has significant gaps related to the clarity of the criteria indicated therein and the lack of definition of this type of banking institutions. In the present article efforts have been made aimed at better understanding the new provisions, analysed even in the light of the European legislation on sustainable finance meanwhile adopted by the European Commission on March 8th, 2018, at the end of a long pathway, accomplished with the communication entitled “Action Plan on Sustainable Finance”. Through the EU legislation it has been tried to overcome some interpretative hurdles related to the identification of the internationally recognized ethical rating standards, as well as to the possibility of including natural persons among the subjects to be evaluated for the grant of funding, also for the purpose of avoiding the risk of identifying ethical finance with “ecological” finance, ignoring all the qualifying aspects of ethical and sustainable finance and, in perspective, also for the purpose of including a wider range of corporate actions in the banking sector (including, last but not least, that relating to the liability of all the actors participating in the management of the bank, broadly intended).  

Sommario: 1. Introduzione. – 2. La nascita di Banca Etica. – 3. La veste giuridica di Banca Etica e la scelta della autoregolamentazione. – 4. Il “Manifesto sulla finanza etica e sostenibile” del 1998. – 5. L’art. 5 dello Statuto di Banca Etica. – 6. Come l’art. 5 dello Statuto si declina nella gestione dell’attività bancaria. – 7. L’introduzione dell’art. 111-bis del Testo Unico Bancario. – 8. [Segue]: l’analisi (critica) all’art. 111-bis. – 9. Il quadro normativo europeo in tema di finanza sostenibile. – 10. Come interpretare l’art. 111-bis TUB alla luce della normativa europea; Premessa: l’Action Plan come “Comunicazione”. – 11. [Segue]: Gli spunti interpretativi dell’Action Plan on Sustainable Finance. – 12. Conclusioni.  

Keywords: Banks — Consolidated Law on Banking — Ethical Finance — Sustainable Finance — Banca Popolare Etica — Art. 111-bis of the Consolidated Law on Banking — Action Plan on Sustainable Finance.