The Bank of Italy’s new regulation issued on 25 August 2015 on reporting obligations on issuance and offering of financial instruments will enter into force on 1st October 2016. Nevertheless the entry into force of such reporting obligations for certain entities has been postponed to January 2017 (by virtue of an additional Bank of Italy’s regulation dated 10 August 2016).
The 2015 Regulation
- On 25 August 2015, the Bank of Italy published the regulation on reporting requirements on issuance and offering of financial instruments (“Disposizioni in materia di segnalazioni a carattere consuntivo relative all’emissione e all’offerta di strumenti finanziari”) (included in this link) (the 2015 Regulation). The 2015 Regulation has implemented Article 129 of the Italian Legislative Decree No. 385 dated 1 September 1993 according to which the Bank of Italy may request to issuers and offerors data and information in relation to the issuance, offering and placement of financial instruments in Italy, or abroad if the instruments are issued, offered or placed by Italian entities (the Reporting Obligations). The aim of this data and information collection is to allow the Bank of Italy to evaluate and monitor the market trend.
- The 2015 Regulation addresses the scope of application, entities and type of financial instruments subject to the Reporting Obligations. It is worth noting that the 2015 Regulation provides certain exemptions from the Reporting Obligations with respect to certain financial instruments (including, without limitation, (i) equity securities or securities similar to equity securities of companies, partnerships or other entities and share deposit certificates, (ii) financial instruments (other than equity securities) issued or guaranteed by the Italian government or an EU member state and financial instruments issued by the European Central Bank or the central banks of the EU member states, (iii) non-structured financial instruments with an original maturity of 12 months or less).
- In particular the 2015 Regulation applies to entities:
- a) residing and not residing in Italy, which issue, offer or place financial instruments (even those whose T&Cs are subject to foreign laws) in Italy;
- b) residing in Italy which issue, offer or place financial instruments abroad; and
- c) which are parent companies residing in Italy and subject to the Bank of Italy’s supervision, by reference to financial instruments issued, offered or placed in Italy by entities not residing in Italy and belonging to the same group.
- Specifically, the Reporting Obligations shall be fulfilled, starting from 1st October 2016, by:
- a) the issuer residing in Italy with respect to the financial instruments placed or offered in Italy or abroad;
- b) the parent company residing in Italy and subject to the Bank of Italy’s supervision, with respect to the financial instruments placed or offered in Italy and issued by entities not residing in Italy belonging to the same group of companies; and
- c) entities which place in Italy financial instruments issued by entities not residing in Italy other than those under item (b) above. In the absence of such entities, the Reporting Obligations shall be fulfilled by the offeror, in case of public offering, or by the issuer, in case of private placement or direct listing.
The Changes to the 2015 Regulation
- As a result of an additional Bank of Italy’s regulation dated 10 August 2016 (included in this link) (the New Regulation), the 2015 Regulation has been amended and restated. In particular certain changes with regard to the entities under item paragraph 4, letter (c) above (only) have been introduced (the Relevant Entities), i.e.:
- a) the Relevant Entities will only be bound by the Reporting Obligations starting from 1st January 2017 (although the Reporting Obligations, with respect to the financial instruments issued or offered from 1st October 2016 to 1st January 2017, will have to be complied with by 20th January 2017);
- b) the Relevant Entities will have to provide the relevant “qualitative information”(i.e. those under Section 1 (“Identifying information upon issuance”), Section 2 (“Other identifying information”) and Section 3 “Structured financial instruments”) of the Annex A of the New Regulation) by an extended deadline of twenty days following the filing of the relevant prospectus with the competent authority or – if such filing is not required – by the twenty-first day following the settlement or issue date; and
- c) the Relevant Entities will not be required to provide periodic information, after the end of the placement period, relating to the number of outstanding instruments and relevant price of covered warrants, certificates, exchange traded commodities and exchange traded notes.