The amendments - which represent a mere transposition of the CBDF Package into CONSOB Regulation - refer, inter alia, to:
· Local facilities to be made available to retail investors in the marketing in Italy of UCITS and EU AIFs managed by Italian and EU AIFMs.
In line with the European regulation, a physical presence in Italy is no longer mandatory. The UCITS/AIFM may decide to make available the facilities directly or through a third part (or to act jointly with a third party) not established in Italy.
In this respect, the CONSOB Regulation, identifies (i) the tasks to be performed by the facilities, (ii) regulates the case in which the tasks are performed by a third party or by the manager jointly with a third party, and (iii) identify the language in which these facilities must be provided (Italian language).
Moreover, CONSOB Regulation states that the performance by electronic means of the tasks assigned to the facilities available to investors is permitted both in the event that these tasks are performed directly by the UCITS/AIFM and in the event that the UCITS/AIFM delegates a third party or acts jointly with a third party.
CONSOB clarifies that the term "by electronic means" used in the CBDF Directive appears to be rather broad and it is therefore left to the discretion of the manager the choice about the electronic means to be used in the interaction with investors.
· De-notification procedure of UCITS and AIFs marketed in Italy
The UCITS and AIFs de-notification procedure is subject to the fulfillment of certain conditions and is based on a communication between supervisory authorities.
· Marketing communications.
The content of marketing material relating to a public offer is now regulated by the provision of the CBDF Regulation and ESMA guidelines on marketing communications (ESMA 34-45-1244). Filing of the marketing material with CONSOB is however still requested.
Description of the new provision of the CONSOB Issuer Regulation referred to UCITS [1] | | Art. 19-ter (Updating procedure)
2. At least one month before implementing the changes, the offerors shall promptly notify CONSOB, the changes provided for in Article 19-bis, paragraph 1, or the marketing of further classes belonging to fund/sub-funds already marketed in Italy. Consob may issue operational instructions in this regard.
[…]When the amendments and updates referred to in paragraph 2 involve updating the KIID, prospectus or subscription form, the filing with Consob of the aforementioned
documents shall be made in accordance with Article 20. | Art. 19 – quarter (Facilities available to investors)
1. The UCITS shall provide investor facilities in Italy with the task of:
(a) execute subscription, repurchase and redemption orders and pay any further payments to investors related to the investment in units or shares of UCITS, in accordance with the terms and conditions set out in the offering documentation, except in the case of admission to trading of the UCITs.
b) provide investors with information on how orders referred to in point a) shall be placed and on the payment arrangements resulting from the execution of repurchase and redemption orders;
c) facilitate the management of information and access to procedures and mechanisms for complaint handling provided for in Article 15 of Directive 2009/65/EC, so as to ensure proper handling of investor complaints and the exercise of their rights;
(d) make available to investors, for inspection the offering documents provided for in Article 20 and any updates thereof provided for in Article 21, the annual and half-yearly reports and, to the extent not contained in the prospectus, the UCITS' fund rules and by-laws, and information concerning the issue or sale, repurchase or redemption price of units or shares of the UCITs.
(e) provide investors, in a durable medium, with information on the investor facilities referred to in this article.
(f) act as a point of contact for any communications with Consob and the Bank of Italy.
2. The tasks referred to in paragraph 1 may also be carried out electronically by the EU UCITS or by a third party subject to regulation and supervision concerning the tasks to be carried out, or both. The appointment of the third party by the EU UCITS shall be evidenced by a written agreement specifying:
(a) the tasks, among those set forth in paragraph 1, which are not to be performed by the UCITS; (b) the obligation of the UCITS to provide the third party with all the information and documents required for the performance of the duties set out in subparagraph 1.
3. The facilities shall be made available to investors in Italian.
4. The investor structures referred to in paragraph 1 shall ensure, with respect to investors established in Italy, the fulfilment of the order management and reporting obligations prescribed by article 51, paragraphs 1, 2, 3, 4, limited to the reference to article 67 of Regulation (EU) 2017/565, and 5 and by article 60, paragraphs 1, 2 and 3, limited to the reference to article 59 of Regulation (EU) 2017/565, of the regulation adopted by Consob with resolution no. 20307 of 15 February 2018. Paragraph 2 applies.
5. The provisions of paragraphs 1, 2, 3 and 4 shall not apply to UCITS whose offer in Italy is exclusively addressed to qualified investors, as defined in Article 34-ter, paragraph 1, letter b).
[..] | Art. 20 (Publication in Italy of the offer documentation)
The subscription form shall be filed with Consob at least one day prior to its effective date, according to the procedures specified by CONSOB with operating instructions. The subscription form shall contain at least the identification elements of the transaction and the following information reproduced in a font that allows for easy reading: - the obligation to deliver the KIID before the subscription;
- the specific costs applied in Italy;
- the name of the entity handling the offer in Italy;
c-bis) information on investor facilities made available in Italy pursuant to article 19-quater, if such information is not already available to investors in the manner prescribed by the UCITS' fund rules or by its By-law;
(d) an indication of the funds/sub-funds of the UCITS offered in Italy, including the relevant classes;
(e) the cases in which the right of withdrawal is applicable.
| Article 22-bis (Termination of marketing)
In case of termination of marketing of units or shares of the UCITS in Italy pursuant to article 42, paragraph 4-bis, of the Consolidated Act, Consob shall receive from the authority of the UCITS home Member State:
a) the notification envisaged by article 42, paragraph 4-bis [2], of the Italian Financial Act; b) any amendments made to the documents provided for by article 19-bis, paragraph 3. |
[1] Similar changes have been introduced in the relevant sections of the CONSOB Regulation dealing with EU AIFMs and EU AIFs marketed to Italian retail investors . [2] Art. 42, par. 4-bis of the Italian Financial Act states that discontinuation of marketing in Italy of UCITS units and shares must be preceded by communication to CONSOB by the authority of the UCITS Home State, in accordance with the procedures set out by Directive 2009/65/EU and in compliance with the relevant enactment regulations adopted by CONSOB Regulation, after consulting the Bank of Italy. |
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