SMEs issuers of listed shares - Publication of the directory (January 21st, 2020)

The Commission published on its website the directory of the "SMEs" pursuant to art.1 w-quater.1) of the Consolidated Law on Finance.

Article 1, paragraph 1, letter w-quater.1) of the Consolidated Law on Finance, introduced the definition of "SMEs" as "[...] listed small and medium enterprises, whose sales also prior to the admission of their own shares for trading, have a sales volume of less than Euro 300 million, or which have a market capitalisation of below Euro 500 million. Issuers of listed shares which have exceeded both the aforesaid limits for three consecutive years are not considered SMEs. [...]".

The attribution of the SME qualification to an issuer entails some significant changes to the applicable discipline regarding:

1. transparency of the ownership structure, by raising the minimum threshold of the significant shareholdings to be communicated, pursuant to article 120 of the Consolidated Law on Finance, from 3% to 5%;

2. mandatory public takeover offers, with specific reference: a) to the ability of SME issuers to establish, by statute, a takeover bid different from the standard one provided it is between 25% and 40% (article 106, paragraph 1-ter of the Consolidated Law on Finance); b) the ability of SME issuers to exercise the statutory opt-out option for the takeover bid in the first five years of listing (article 106, paragraph 3-quater of the Consolidated Law on Finance).

In addition, the aforementioned regulation has changed the entire regulatory regime regarding mandatory takeover bids by introducing the provision that "In companies other than SMEs, the offer referred to in paragraph 1 can be promoted also by anyone who, subsequent to acquisitions, comes to hold a stake greater than the threshold of twenty-five per cent, where there is no other shareholder with a higher stake" (article 106, paragraph 1-bis of the Consolidated Law on Finance). Always the aforementioned article 1, paragraph 1, letter w-quater.1) of the Consolidated Law on Finance assigns specific operational tasks to the Institute, providing that "Consob establishes by regulation the implementation provisions of this letter, including the disclosure obligations of such issuers in respect of the acquisition or loss of the qualification of SME. [...]".

In order to follow up on this provision, on 24 November 2017 Consob launched a public consultation with the market regarding the implementation provisions for the definition of issuers of listed shares "SMEs". More in detail, with the consultation document, regulatory proposals have been articulated concerning: i) the criteria for calculating capitalization and turnover, ii) the disclosure requirements to which issuers are required in relation to the purchase or loss of SME status and, iii) how to publish the list of SMEs.

As a result of the consultative process, on 10 October 2018 the Commission, with its resolution no. 20621, approved an amendment to the Issuers Regulation which introduces article 2-ter ("Implementing provisions of the definition of SMEs") and established that "Upon its first application [...] SMEs make a communication to Consob within 30 days from the date of entry into force of this resolution, containing the following information:

a) the indication of possession of the SME qualification, together with the start of its exercise;

b) the capitalization and turnover values, with details of the components that contributed to determining the turnover value, also referring to the years following the starting year of the qualification.".

Consequently, in November 2018, Consob published on its website a notice requesting to the issuers concerned (i.e. SMEs) to proceed with the communication of the prescribed data through the use of a special Excel file.

On the basis of the data collected and of the verifications carried out even with the comparison with the issuers concerned, the directory of listed SMEs issuers was published as of 30 September 2019 including only the Italian enterprises (i.e. with registered office in Italy) with (at least) ordinary shares admitted to trading on the MTA. Foreign and Italian companies with only listed savings shares are therefore excluded from the directory.