The Italian legal and regulatory framework does not contemplate the possibility for EU sub-threshold AIFMs (other than EuVECA or EuSEF AIFMs) to market the units/shares of the AIFs they manage in Italy. Indeed, as also confirmed by some officers of the Italian regulator (CONSOB) with whom local counsel discussed the matter, the only EU sub-threshold AIFMs (other than EuVECA or EuSEF AIFMs) which may be allowed to market the units/shares of the AIFs they manage in Italy are those which choose to opt-in under AIFMD in accordance with the Commission Implementing Regulation (EU) no. 447/2013 and activate the notification procedure established by Article 32 of AIFMD.
The concept of reverse solicitation is recognized in Italy. However, it should be noted that the position informally taken by CONSOB is that there is a strong "presumption" that investments made by Italian resident clients are always the consequence of an offering into Italy carried out by the relevant intermediary (or by a person acting on its behalf).
In light of that, if reliance is made on the "reverse enquire"/"offer outside Italy" arguments, the relevant intermediary is strongly advised to keep adequate records demonstrating the relevant circumstances surrounding the transaction. The higher the number of investments made by Italian resident clients, the greater the risk that a regulator or a court would consider it unlikely that such investments did not involve, at a certain stage, the carrying out of an offer/marketing into Italy.
The above being said, it seems worth noting that, in very general terms, the mere conduct of generic presentations (e.g., organization of seminars, roadshows and conference on the financial markets and on the expertise of the intermediary in a given field) without any reference to specific products/investments would not amount to an offering into Italy. Thus, in principle, if an investor participates in seminars and road-shows organized by the intermediary and then decides to autonomously approach this latter to discuss opportunities and make the investment, the intermediary may still be able, in theory, to rely on the "reverse solicitation" argument, if it is able to demonstrate that the specific investment was never offered/promoted to the client in the context of such seminars and road-shows, but rather carried out by the client at his own exclusive initiative. Indeed, it is all a matter of evidence.
Neither the Bank of Italy has addressed the matter nor, more in general, CONSOB has issued any specific guidance on reverse solicitation. However, when interpreting reverse solicitation, it is likely that the Italian Regulators would consider the indications provided by ESMA at European level (see Section 13 of the Q&A on MiFID II and MiFIR investor protection and intermediaries topics, 4 December 2019, ESMA 35-43-349).
The information in our toolbox provides managers of private equity or venture capital funds with an initial overview of certain framework conditions in the respective country. It does not provide advice on the law of any country, neither does it substitute such advice. The above information reflects the legal situation as of February 10, 2020. Before marketing a fund into the respective country, it is at all times necessary to seek expert advice. Our team is happy to assist you with all questions at any time.