ITALY Law and Practice Contributed by: Emidio Cacciapuoti, Giorgio Bobba and Davide Massiglia, ADVANT Nctm
3.3.11 Approach of the Regulator Please see 2.3.11 Approach of the Regulator . 3.4 Operational Requirements In the exercise of its management activity, the retail fund may – up to a maximum of 10% of the total net value of the fund – take out loans to cover temporary mismatches in treasury man - agement, in relation to the investment or disin - vestment needs of the fund’s assets. The duration of the loans taken out must be related to the purpose of the debt and in any case may not exceed six months. In the case of short-term borrowing, its use must be char - acterised by a high degree of elasticity. Within the above limits, loans in a foreign currency with a deposit with the lender of a corresponding amount of domestic currency (so-called back- to-back loans) are not counted. 3.5 Fund Finance Please see 2.5 Fund Finance . 3.6 Tax Regime Please see 2.6 Tax Regime . 4. Legal, Regulatory or Tax Changes 4.1 Recent Developments and Proposals for Reform AIFMD2 Directive (EU) 2024/927 (“AIFMD2”) brings a range of amendments to the regulatory frame - work for alternative investment funds (AIFs), which merit close attention from fund managers and market participants. Notably, it introduces provisions targeting loan-originating AIFs, aim - ing to harmonise practices across Member
States while permitting tailored national imple - mentations. Key amendments include the following. • A definition of “loan origination” that extends beyond direct lending to include indirect arrangements through third parties or spe - cial purpose vehicles. This applies where the AIF or its manager is involved in structuring the loan, defining its terms, or agreeing its preliminary characteristics prior to assuming exposure. • Introduction of “loan-originating AIFs”, defined as: (i) AIFs whose primary investment strat - egy is to grant loans; or (ii) AIFs where granted loans represent at least 50% of the fund’s net asset value. • Concentration limits, restricting loan-originat - ing AIFs from lending more than 20% of their assets to a single borrower, if it is an AIF, a UCITS or a financial undertaking. • Leverage restrictions, which impose the fol - lowing limits: A specific exemption applies for shareholder loans, defined as loans made to companies in which the AIF holds at least 5% of the capital or voting rights. Such loans cannot be transferred to third parties; • Structuring flexibility, allowing loan-originating AIFs to be established as either open-ended or closed-ended funds, subject to criteria to be defined by ESMA. These criteria will assist national regulators in determining whether open-ended structures are suitable. (i) 175% for open-ended AIFs; and (ii) 300% for closed-ended AIFs.
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