Protection at risk if there is no framework contract for those receiving financial advice
In the case of litigation, having a formalised agreement strengthens the client's case
In 2025, more than a third of the complaints classified by the Arbitro per le Controversie Finanziarie (36.7% of the 760 complaints received in the year) concerned investment advice. Regarding this high number, the ACF, in its annual report, points to a widespread tendency among savers to attribute to financial advice any contact or interaction they had with their intermediary.
Advant Nctm Counsel Ludovica D'Ostuni notes that advice 'creeps' very easily into the folds of business relationships in multiple contexts. The Mifid directive defines advice as the provision of personalised recommendations relating to transactions in one or more financial instruments, which is when the recommendation is presented as suitable for the client or based on consideration of the client's specific characteristics.
To define the exact perimeter of this matter, lawyer D'Ostuni recalls an Esma document from 2023, which takes a rigorous approach that looks at substance rather than form. An intermediary gives advice when he presents a product subjectively, perhaps describing it as 'best in class' with the intention of influencing the client's decision, regardless of whether there is a written contract or whether he is trying to exclude his own liability through disclaimers. This logic also applies perfectly well to digital environments: lawyer D'Ostuni gives the example of a website that merely displays funds as a mere virtual shelf, which does not constitute advice; however, if the system allows the user to filter the products according to his or her own characteristics in order to obtain a more precise indication, then that mechanism becomes real advice.
The same principle outlined by Esma is valid for finfluencers: expressing general opinions addressed to the general public is not advice, but responding directly to an individual user's request by saying 'Look, in my opinion this is good for you' brings the activity into the realm of personalised recommendation.
On the strictly operational and contractual side, lawyer Letizia Vescovini illustrates the formal consequences of these services, clarifying that when the advisory service is contractually agreed upon, usually within the framework contract, the intermediary is obliged to fulfil the information obligations with greater rigour and to carry out the investor's suitability assessment. If the intermediary, under a contract with an advisory service, intends to proceed in mere execution of orders, limiting himself to assessing only appropriateness (i.e., experience and knowledge of the product), Mr. Vescovini points out that he is "required to prove that the client was informed of the lesser protection and had agreed to opt out of the advisory service".
