ITALY Law and Practice Contributed by: Emidio Cacciapuoti, Giorgio Bobba and Davide Massiglia, ADVANT Nctm
2.3.5 Rules Concerning Pre-Marketing of Alternative Funds The Italian legislative definition of “pre-market - ing” of reserved AIFs (see Article 42-bis of the UFA) is directly borrowed from that included in the AIFM Directive and relates to the “provi - sion of information or communications, whether directly or indirectly, on investment strategies or ideas by an asset management company, or on behalf thereof, to resident prospective profes - sional investors or those with head office in the EU, in order to survey their interests in an Italian or EU AIF yet to be instituted, or instituted and for which the relevant notification procedure is yet to be activated in the member state in which the prospective investors are resident or have their head office.” No pre-marketing activity is admissible towards retail investors. No pre-marketing activity is allowed in cases where the information provided to the prospec - tive investors: • is sufficient to allow the investors to commit to subscribing shares or units of a particular AIF; • is equivalent to subscription forms or similar documents, in draft or final form; and • is equivalent to the final version of the instru - ment of incorporation, prospectus or other document related to a yet-to-be-instituted AIF. Where resident prospective professional inves - tors are given (by the relevant AIFM) a draft pro - spectus or draft offering document, these must contain sufficient information for the investors to make investment decisions and clearly state that:
of the compliance officer, and the data on any complaints received. Under the freedom to provide services regime, the activity of a non-local AIFM will continue to be supervised by the home country authority in accordance with the “home country control principle”. 2.3.4 Regulatory Approval Process Retail funds – other than reserved funds (which are not subject to any approval process) – are subject to the regulatory approval of the Bank of Italy, which must approve the relevant man - agement rules. The request for authorisation is presented to the Bank of Italy by the AIFM and must include the text of the management rules, the confirmation by the depositary of being ful - ly licensed, and the resolution of the board of directors. The fund is approved 60 days after the filing has been completed, provided that all the requested documentation has been submitted. If the management rules of retail are drafted according to the standard format provided by the Regulations on Collective Asset Manage - ment adopted by the Bank of Italy on 19 Janu - ary 2015, then the approval of the Bank of Italy need not be requested, provided that the board of directors of the AIFM acknowledges the pres - ence of the conditions enabling it to avoid the approval of the Bank of Italy (in this case, a communication should be sent by the AIFM to the Bank of Italy within ten days of the approval of the management rules, attaching the man - agement rules and the resolution of the board of directors). The Bank of Italy can forbid the establishment of the fund if there are issues con - nected with the financial and economic situation of the AIFM.
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