[Newsflash n. 55]
On 29 November 2018, CONSOB published the Resolution n. 20686/2018 dated 9 November 2018 in the Italian Official Gazette, which amended Article 34-ter of CONSOB Issuers’ Regulation setting out the exemptions from the obligation to publish a prospectus, with particular regard to the threshold under which public offerings are exempted. In particular, CONSOB increased the total consideration of an offer to be exempted from the obligation to publish prospectus (calculated over a period of 12 months) from EUR 5,000,000 to EUR 8,000,000.
CONSOB chose the most flexible option envisaged by the EU Prospectus Regulation (EU/2017/1129) for the purpose of easing the access to the capital market for small and medium sized enterprises (as expressly stated in the Regulator’s note dated 20 November 2018).
This Resolution follows a previous resolution issued by the Regulator (Resolution n. 20621/2018) with the aim of creating a more favourable capital market environment for SMEs. Indeed, such previous Resolution has clarified the exclusion of “crowdfunding issuers” from the qualification as issuers of widely held securities, with the consequent relief from the applicable regulatory regime.
Indeed, the previous version of Article 2bis of CONSOB Issuers’ Regulation concerning issuers of widely held securities left open the possibility that issuers raising capital through on-line platforms might be considered as such category of issuers, which would constitute a strong disincentive to the use of crowdfunding as an alternative to traditional channels for raising capital. Taking on board the concerns brought up by market players, with Resolution n. 20621/2018 the Regulator has amended the above mentioned Article 2-bis specifying that the quantitative thresholds (above which an entity is considered an issuer with widely held securities) are deemed exceeded only if the shares have been offered through a public offering subject to the obligation to publish a prospectus.
Considering the definition of crowdfunding according to Articles 1(5-novies) and 100-ter of the Italian Financial Act – i.e. public offers through online portals of financial instruments issued by small and medium sized enterprises (or OICR that invest mainly in small and medium-sized enterprises) which aggregate consideration shall be below the threshold for the application of the obligation to publish a prospectus – the Resolutions open more opportunities for market players to use crowdfunding to finance their projects.
In fact, the increase of the threshold to be exempted from the obligation to publish a prospectus allows issuers to raise more capital (see Resolution 20686) and, at the same time, the clarification regarding the exclusion of the status of issuer of widely held shares (see Resolution 20621) provides more certainty to market players as to the applicable regulatory requirements.
Please do not hesitate to contact us should you need any further clarification or assistance on the above and any other related matters.
Contacts:
Vito Vittore
Partner
Elena Pagnoni
Partner
Roberta Talone
Associate
