CONSOB REGULATION NO. 11971 (UPDATE MARCH 2009)
This white paper provides an overview of the new requirements applicable to foreign harmonised undertakings for collective investments in transferable securities “UCITS” (investment funds and SICAVs incorporated in compliance with the Directive 85/611/EEC, as amended by the Directive 2001/108/EC and 2001/107/EC) offered in Italy to retail investors.1
The new requirements introduced on 19 March 2009 by Consob Resolution, no. 16840 (the “Resolution”) amend the 14 May 1999 Consob Regulation no. 11971 as successively amended and integrated (the “Issuer Regulation”). The Resolution will be applicable from 1 July 2009.
The relevant changes concern:
- the updating of the prospectus
- the disclosure obligations
- the structure of the application form and its annex
Updating of the Prospectus
To simplify the publication procedure in Italy, the Resolution requires that upon the filing of the prospectus with Consob’s “Archivio Prospetti” (i.e. Consob Prospectus Records Office), the Italian version of the prospectus must be made available in Italy via the UCITS website as well as the website of the entities appointed as placement agents in Italy. 2
It is, however, understood that the simplified prospectus shall be delivered to the investors before the submission of the application form.
The Resolution requires that the updated prospectus should only be filed with Consob and published on the respective websites if the changes concern UCITS offered in Italy. The updated prospectus does not need to be filed with Consob and published on the websites if the changes do not concern UCITS offered in Italy.3
GENERAL REQUIREMENTS UNDER THE ISSUER RESOLUTION
The Resolution does not affect the following general requirements which are applicable to UCITS offered in Italy, as stated in the Issuer Regulation, as currently in force: 4
- any documents and information - concerning UCITS offered in Italy - addressed to investors in the Home Member State, shall also be notified to the Italian investors according to the same terms and conditions provided in the Home Member State. The Italian investors shall be notified simultaneously to the investors in the Home Member State.
- the Italian investors shall be notified of the following changes
- changes of the identity of the manager
- changes of the essential features of the investments
- increases to the fees and expenses to be borne by investors and by the UCITS that are higher than 20% 5
According to point (i), the UCITS is, therefore, obliged to inform the Italian investors according to the same terms and conditions provided in the Home Member State. It should be noted that under point (ii) above, the relevant information shall be notified to the Italian investors regardless of whether a notification is made in the Home Member State.
PUBLICATION OF THE NAV, OF THE DIVIDENDS NOTICES AND OF THE SHAREHOLDERS’ MEETING CALLS
The Resolution has introduced material changes to the conditions of disclosure of the net asset value (NAV), of the dividend notices and of the shareholders’ meeting calls.
In particular, the Resolution provides that the NAV, the dividend notices and the shareholders’ meeting calls shall be published in accordance with “suitable and appropriate modalities in order to guarantee the availability of the source of the information as well as the publicity of the same at the ease”.6
The Resolution7 and Consob guidelines8 clarify that the publication of the above information can also be accomplished through means other than an Italian newspaper. In particular, publication on the UCITS websites will suffice and fulfill the publication requirement, provided that:
- publication in a newspaper is maintained for a minimum period of four-months simultaneously with the publication on the website
- each investor is promptly (by and no later than the expiration of the four-month period mentioned under point (i) above) notified of the new means of publication
- a specific disclaimer is posted on the website homepage informing the investors of the section where the NAV is disclosed and the way in which to access such information
- the offering documents of the UCITS indicates that the NAV will be published on the website. The offering documents shall also describe how to access the NAV’s information on the website9
Application Form and Annex
The Resolution introduced some minor changes to the structure of the application form as well as to the annex.10
With respect to the application form:
- the form shall state that the management company/SICAV undertakes the responsibility of the truthfulness and completeness of the data and information stated on the application form
- the UCITS has the faculty to add information concerning any inducements to placement agents to the application form
- forms completed on the internet, shall state that the information on the online form is the same as that on the paper based form
With respect to the annex:
- the reference to the date of filing and effectiveness shall now be stated in the annex and not on the application form. This change allows the filing of the annex only, provided that the changes concern only this document
- the annex may state detailed information on the possibility for the investor to adhere to savings/switching/redemption plans and/or confer mandate to the payment agent. Such information must only be inserted in the annex provided that they were already included in the full and simplified prospectus of the UCITS
The Resolution clarifies that with respect to offerings still under way as of 1 July 2009, the UCITS shall file the application form under the new rules only upon the publication of its first update of the prospectus in any event, by and no later than 31 March 2010.11