Italian laws and regulations do not provide for a definition of “private placement”.
The term “private placement” is commonly used to indicate a restricted offer of financial products to professional investors that is exempted from the duty to publish a prospectus.
In particular, according to Article 100 of the Italian Consolidated Financial Act (Legislative Decree no. 58 / 1998, “CFA”), as implemented by Article 34-ter of the Issuers Regulation no. 11971 / 1999 issued by Consob (the Italian Securities Market Supervisory Authority), the offer of financial products exclusively to professional investors (as well as in the other cases provided for by Article 1 left, b) to j) of the European Prospectus Regulation (EU) 2017/1129), is exempted from the duty to publish a prospectus.
The definition of professional investors is set out under Article 6, para. 2-quinquies of the CFA and Attachment 3 of Consob Intermediaries Regulation no. 20307 / 2018, whereby professional investors include:
- professional investors by operation of law, i.e.:
- Italian and foreign entities authorised and regulated to operate in financial markets (e.g. banks, investment companies, insurances, pension funds etc.);
- large companies meeting certain requirements;
- institutional investors whose main activity is investment in financial instruments;
- professional investors on request, provided that certain criteria and procedures are met (in this case the offeror is in any case obliged to assess whether the investor is able to make informed investment decisions and to understand the risks thereof); and
- public professional investors, subject to certain procedures and requirements.
The marketing of AIFs to professional investors (and to the investors identified under the Ministry Regulation enacted under Article 39 of the CFA) shall be preceded by the prior notification to Consob under Article 43 of the CFA, requiring:
- the prior notification to Consob and an assessment by the Bank of Italy of the adequacy of the AIFMs to manage the relevant AIF, in order to market to professional investors:
- Italian AIFs reserved to professional investors; and
- EU and Non-EU AIFs managed by either Italian SGRs (asset management companies) or Non-EU AIFMs authorised in Italy;
- the prior notification to Consob by the home State authority in order to market to professional investors:
- Italian AIFs and;
- EU and Non-EU AIFs managed by either EU AIFMs or Non-EU AIFMs authorised in an EU country other than Italy.
The above notification duties also apply to Italian, EU and Non-EU AIFs managing their own assets.
It must be noted that the above Italian law provisions regulating the marketing of non-EEA AIFMs in Italy shall become effective only after the enactment of the delegated act under art. 67, para. 6 of the EU Directive 2011/61/EU.
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