04 September 2013

Hedgeweek: Implementation of the AIFMD in Italy – First ground-breaking steps

However, on 26 July 2013 the Italian securities regulator (CONSOB) and the Bank of Italy, consistent with the action taken at the time of the entry into force of the UCITS IV Directive in summer 2011, issued a resolution (the “Joint Resolution”), allowing for an initial and partial implementation of the AIFMD, particularly as regards marketing in Italy of European alternative investment funds (“EU AIFs”).

The marketing in Italy of foreign non-UCITS funds has historically been severely constrained due to the absence of a private placement regime (so that any form of offer or marketing, regardless of the number or nature of the investors, had to be authorised) and the complexity, length and thoroughness of the authorisation procedure provided under the Bank of Italy’s Regulation on Collective Investment Undertakings (the “Bank of Italy Regulation”). The first ever authorisation under the Bank of Italy Regulation was granted only in August 2007 and since then only a handful of non-UCITS funds have been authorised to market in Italy.

With the Joint Resolution, marketing in Italy to professional investors of EU non-UCITS funds (and arguably of other products linked to such funds) becomes a significantly more easily achievable task, provided that the AIFM’s Home Member State has already implemented the AIFMD and that the requirements set out therein are complied with. In this respect, it should be noted that, while this is not specifically mentioned in the Joint Resolution, the marketing in Italy of EU AIFs by EU AIFMs remains subject, inter alia, to compliance in Italy with: (i) the disclosure to investors rules set out in article 23 of the AIFMD; and (ii) the national provisions regarding the “arrangements made for the marketing of the AIFs and, where relevant, the arrangements established to prevent units or shares of the AIF from being marketed to retail investors, including in the case where the AIFM relies on activities of independent entities to provide investment services in respect of the AIF” (item (h) of Annex IV of the AIFMD).

Item (ii) is not addressed in the Joint Resolution and it remains to be seen whether the relevant arrangements should be identified on the basis of the pre-AIFMD provisions (i.e. the Bank of Italy Resolution), which requires the appointment of a paying agent and of an entity in charge of investor relations in Italy (but at the same time provides for a possible derogation from these requirements where marketing is restricted to professional investors), or of the Draft Transposition Measures, which are, however, rather vague on this point and only list as an example the inclusion of appropriate selling restrictions in the fund rules or constitutional documents.

In light of these draft provisions, some tentative conclusions can be drawn:

• once the European passport for non-EU AIFMs comes into force, it would be the sole avenue for non-EU AIFMs to access the Italian market (i.e. there would be no dual marketing system after 2015);
• until the entry into force of the European passport for non-EU AIFMs, the current authorisation procedure provided for by the Bank of Italy Regulation would continue to apply to non-EU AIFMs, although we note that adjustments to such procedure may be needed in order to ensure compliance with the requirements of article 42 of the AIFMD (Conditions for the marketing in Member States without a passport of AIFs managed by a non-EU AIFM).

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