Cross-border distribution of collective investment undertakings: implementation in Italy of EU rules | Hogan Lovells
Italy is preparing to adapt its legislative framework to European Union standards and to eliminate fragmentation at national level for UCITS.
On July 15, 2021, the Italian Council of Ministers approved, in preliminary examination, a legislative decree introducing rules to adapt national legislation to EU rules on cross-border distribution of collective investment undertakings.
The draft decree follows the publication of Directive (EU) 2019/1160 and Regulation (EU) 2019/1156, which regulate the cross-border distribution of undertakings for collective investment in order to remove regulatory obstacles that limit the supply of ‘organizations between the different states of the EU. , with the aim of achieving a greater level of harmonization at EU level. Regulation (EU) 2019/1156 applies from 1 August 2019, with the exception of Article 4 (1) to (5) concerning the requirements Marketing communication, Article 5, paragraphs 1 and 2, on the publication of information on the websites of the competent authorities, and Articles 15 and 16, regarding “pre-marketing”, which apply from August 2, 2021. The transposition deadline provided for by the directive is August 2, 2021.
Removing inefficiencies in the functioning of the single market for investment firms should reduce costs and therefore accelerate the growth of cross-border distribution in the EU. Indeed, most UCIs are marketed in the country of origin and cross-border distribution is still too limited.
Among other things, by the draft decree, Decree-Law No. 58 of 1998 (the consolidated financial law) would be amended to provide that:
- the Bank of Italy and the Consob, in accordance with their respective powers, are designated as competent national authorities under Regulation (EU) 2019/1156 for the publication and management on their websites of the information provided for in the Article 5, paragraph 1 of Regulation (EU) 2019/1156;
- the Bank of Italy is designated as the competent authority to define the rules for communicating the interruption of the offer of Italian UCITS in other EU Member States;
- the notion of “pre-marketing” is introduced. It consists in providing information and communications on the investment strategies or ideas of a portfolio management company or an alternative investment fund manager to potential professional investors, residing or having their registered office on the territory of the EU, in order to explore their interest in an Italian or EU AIF or a compartment not yet established or already established but for which the notification procedure has not yet been initiated in accordance with Article 43, paragraphs 2 and 8, in the Member State where the potential investors reside or have their registered office. The draft decree specifies that pre-marketing does not constitute an offer to the public;
- the administrative sanctions provided for by the consolidated finance law are extended to offenses against the provisions of the draft decree.
The draft legislative decree approved in preliminary examination will follow the ordinary legislative procedure. It will be subject to a final review and may be amended and incorporated, before its final publication in the Official Journal and its entry into force.