The new rules on pre-marketing and marketing of funds in Italy

The CONSOB Resolution will, in particular, introduce material and significant changes to the CONSOB Issuer Regulation in order to fully align the domestic secondary level legislation to the provisions laid down by the European Directive no. 2019/1160 (the so-called Cross-Border Distribution Fund Directive, CBDF Directive) and the European Regulation no. 2019/1156 (the CBDF Regulation), to the extent applicable.

Background

The CBDF Directive was implemented into the Italian primary level legislation (i.e. the Italian Financial Act) by Legislative Decree no.191 of 5 November 2021, and entered into force on 15 December 2021 (the Decree 191).

Although Decree 191 implemented the general principles stemming from the CBDF Directive, the same decree envisaged a delegation to CONSOB to enact the secondary level legislation to implement the provisions included in the Italian Financial Act by Decree 191.

On 11 February 2022, CONSOB exercised its delegation power launching a public consultation aimed at amending the CONSOB Issuer Regulation to align the secondary level legislation to the provisions envisaged in the CBDF Directive. Upon the conclusion of the public consultation (ended on 11 March 2022), CONSOB enacted the CONSOB Resolution.

The amendments to the Consob Issuer Regulation

The key changes introduced to the CONSOB Issuer Regulation are, inter alia:

1. The regime governing the local facilities to be made available to investors. In this respect, CONSOB seems to have practised gold plating in the implementation of this EU provision extending the requirements to make those facilities available, not only to retail investors, but also to eligible non-professional investors, as defined under Italian law;
2. The regime governing the de-notification of the arrangements made for marketing regarding quotas or shares of funds;
3. The introduction of a new set of rules governing the pre-marketing of reserved alternative investment funds to Italian professional investors; and
4. The regime governing the marketing materials and communication pertaining to the marketing and/or offering of quotas or shares of funds to Italian investors. In particular, the regime at stake has been amended in order to take into account that, in light of the provisions laid down by the CBDF Regulation, CONSOB would no longer exercise any regulatory powers on the criteria according to which marketing/offering to the public of open-ended UCTIS and/or AIFs shall be carried out.

How Allen & Overy can help

A&O can help you in investigating the changes introduced to the CONSOB Issuer Regulation, providing advice as to whether and to what extent the full implementation of the CBDF Directive and CBDF Regulation may impact your current business model as well as assisting you in carrying out a review of your marketing/offering documents and strategies against the new set of provisions entering into force in the coming days.