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Amendments to the issuers regulation regarding cross-border distribution of investment bodies (7 September 2022)

The European legislation on the cross-border distribution of UCIs, provided for in the so-called CBDF Package (Regulation (EU) 2019/1156 and Directive (EU) 2019/1160) and the new pre-contractual disclosure obligations envisaged for UCI managers by the SFDR and Taxonomy Regulations, made it necessary to amend - subject to the publication, on 11 February 2022, of a consultation document - the Regulation implementing the Legislative Decree no. 58 of 24 February 1998, (Consolidated Law on Finance - TUF), concerning the regulation of issuers, adopted with Resolution no. 11971 (Issuers Regulation), in order to:

i) adapt the regulatory legislation pertaining to Consob to the CBDF Directive and the CBDF Regulation, within the framework of the regulatory powers attributed to the Institute by the TUF, as also amended by Legislative Decree no. 191/2021;

ii) adapt the pre-contractual information provided in the offer documentation relating to UCIs to the SFDR Regulation and the Taxonomy Regulation.

The consultation with the market ended on 11 March 2022.

As a result of the consultation procedure, the Commission adopted the Resolution no. 22437 of 6 September 2022 (currently being published in the Official Gazette) with which changes have been made to the Issuers Regulation.

With reference to the adjustment to the CBDF Package, the primary areas of intervention concerned:

a) the regulations relating to the structures for retail investors that must be made available in Italy in the event of the marketing in our country of units or shares of EU UCITS, EU AIFs (Alternative Investment Funds) by Italian managers, or of Gefia (managers of alternative investment funds) EU, as well as of Italian AIFs by Gefia EU.

The discipline relating to local facilities identifies the tasks to be performed by the structures available to investors, governs the case in which the tasks have been conducted by a third party or by the manager jointly with a third party and identifies the language in which such structures must be provided;

b) the discipline on the ending of marketing, in an EU state other than Italy, of FIA units or shares by Italian managers and, in Italy,:

• of EU UCITS units or shares;

• of Fia reserved by Gefia Ue;

• of Italian and EU AIFs with retail investors by EU Gefia.

c) the discipline on the pre-marketing of reserved AIFs, which identifies the deadline and methods of transmission of the communication that the Italian manager must send to Consob, establishes that the AIF subscriptions made within eighteen months from the beginning of the pre- marketing concerning this AIF are considered the result of the marketing, with the consequent obligation to complete the notification procedure and identify the subjects who can carry out the pre-marketing activity on behalf of a manager;

d) the rules on marketing communications applicable in the context of an offer to the public relating to UCIs, which has been modified to take into account the fact that Consob no longer has the regulatory power to govern the criteria on the basis of which the advertising is made with reference to an offer to the public of open-ended UCITS units or shares (UCITS and AIFs), the discipline provided for by the CBDF Regulation being applicable in this regard as well as the Guidelines on marketing communications under the Regulation on cross-border distribution of funds (ESMA34- 45-1244).

With reference to the adaptation to the provisions concerning pre-contractual information on sustainability envisaged by the SFDR Regulation and the Taxonomy Regulation with regard to UCITS and AIF managers and their products, it is envisaged in the Issuers Regulation that this information is provided in the prospectus/document of offer (in the case of AIFs which are not subject to the prospectus obligation) or in a specific attachment, based on the provisions of article no. 6 of the SFDR Regulation and the regulatory technical standards adopted by the European Commission in accordance with the provisions of the aforementioned European regulation.

The resolution also provides that the aforementioned pre-contractual disclosure obligations, which have not yet become applicable pursuant to the SFDR Regulation and the Taxonomy Regulation, shall apply from the dates of application provided for by the European regulations. Finally, a transitional provision is also dictated to allow the updating of the offer documentation in relation to the UCITS offers in progress.

The resolution amending the Issuers Regulation, together with the Explanatory Report on the results of the consultation and the contributions received, are published on the website at the following link: /web/area-pubblica/consultazioni?viewId=consultazioni_concluse .