AIFM passporting in Italy

Asset management companies authorised in their EEA home State as AIFMs under the AIFMD may carry out asset management activities in Italy, for which they are authorised to do in their home State, either through a branch or on a crossborder basis. 

Under Article 41ter of the Consolidated Financial Act (Legislative Decree no. 58 / 1998) (“CFA”), in order for EEA AIFMs to carry out their asset management activities, prior notification to the Bank of Italy is required. The AIFM home State competent authority must inform the Bank of Italy, who will promptly forward such communication to Consob, the Italian Securities Market Supervisory Authority. 

EEA AIFMs operating in Italy through a branch must comply with a number of Italian legal / regulatory provisions, including conduct rules, conflict of interest provisions, and disclosure 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, whilst the marketing of AIFs to retail clients in Italy requires the prior authorization by Consob under art. 44 of the CFA. 

Pursuant to Article 41-quarter of the CFA, the  Bank of Italy, following a consultation with Consob, may authorise non-EEA AIFMs to manage Italian or other EEA AIFs, or to market in the EU such managed AIFs provided that Italy qualifies as a ‘Member State of Reference’ under Article 4 (z) and Article 37 (4) of AIFMD. Once authorised, the relevant AIFM will be registered in the special section of the Registry of Asset Management Companies held by the Bank of Italy under Article 35 of the CFA. Non-EEA AIFMs that have been authorised in other EEA countries may market Italian and UE and non-UE AIFs in Italy to professional investors following completion of the notification process under Article 41-ter and 43 of the CFA (see paragraph 1 above on EEA AIFMs for a further explanation).

Non-EEA AIFMs operating in Italy through a branch must comply with a number of Italian law / regulatory provisions, including conduct rules, conflict of interest provisions, and disclosure requirements.

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.

According to Article 42-bis of the CFA (as amended by Legislative Decree no.191/2021, implementing the pre-marketing EU Directive 2019/1160), EEA AIFMs can carry out pre-marketing activities of reserved AIFs vis-à-vis professional investors in Italy provided that CONSOB receives a prior notification by the competent home state Authority of the relevant EEA AIFM, to whom Consob can request further information on the pre-marketing activities that are envisaged or that have already been performed.

Each year Consob issues specific resolutions determining the fees payable for the following year by supervised entities, including foreign asset management companies operating in Italy, either through a branch or on a services basis. 

The fees due to Consob for the 2023 financial year by, inter alios, AIFMs, are determined by the Consob Resolution no. 22554 of 22 December 2022 as follows: 

1. in case of marketing of units or shares of not reserved AIFs following the completion, in the previous year, of the marketing authorisation procedure under Article 44 of the CFA: an amount of EUR 2,090.00 for each fund or subfund, if any; 
2. in case of marketing of units or shares of AIFs to professional investors following the completion of the marketing procedure under Article 43 of the CFA: an amount of EUR 1,060.00 for each fund or for each subfund, if any; 
3. in case of AIFMs enrolled as of 2 January 2023 in the relevant Asset Managers’ Registry held by the Bank of Italy and offering (their own or third parties’) funds to retail clients in Italy, where the marketed volumes exceed EUR 100,000.00: 
   1. for volumes up to EUR 1,000.000.00: EUR 4,710.00; 
   2. for volumes up to EUR 10,000.000.00: EUR 14,130.00; 
   3. for volumes up to EUR 100,000.000.00: EUR 23,550.00; 
   4. for volumes up to EUR 1,000,000,000.00: EUR 32,970.00;  
   5. for volumes up to EUR 3,000,000,000.00: EUR 42,390.00; 
   6. for volumes exceeding EUR 3,000,000,000.00: EUR 49,455.00. 

No application fee is payable in respect of outward or inward passport notifications by asset management companies.