Indirect Shareholdings in Bank Ownership Regulation: the Role and Functions of Fiduciary Arrangements

Abstract

The article analyses the regulatory framework governing indirect holdings in the ownership structures of banks, with particular attention to the coordination of Articles 22 and 22-bis of the Italian Consolidated Banking Act (TUB) with the European regulatory framework and supervisory rules. A central focus of the analysis is the progressive shift away from a formalistic conception of the prudential assessment of qualifying holdings towards a substance-over-form approach, aimed at identifying the actual centres of economic and managerial influence over a bank, including where complex and multi-layered ownership structures are involved. Through an integrated examination of European legislation and domestic primary and secondary rules, the study explores the distinction and interaction between indirect holdings and acquisitions by persons “acting in concert”, as well as the role of fiduciary registration as a specific instance of the separation between formal and beneficial ownership. The article ultimately seeks to assess whether the current regulatory framework is capable of ensuring effective and transparent prudential supervision of banks’ ownership structures, while reducing the potential for opacity arising structures involving multiple parties. At the same time, it considers the critical issues associated with the widening scope of supervisory authorities’ discretion and the need to maintain an appropriate balance between the effectiveness of supervision, legal certainty, proportionality and procedural safeguards.