Article 113, paragraph 3 of Legislative Decree No 58 of February 24 1998 (Legislative Decree No 58) expressly contemplates that a prospectus drafted in line with EU directives and approved by the competent authority of another member state is recognized by Consob for being admitted to tradings on a regulated Italian market subject to the following of the modalities to be implemented by Consob through specific regulations.
The implementation modalities were approved by a Consob resolution of May 14 1999 (Resolution No 11971) which replaced a previous resolution of Consob (Resolution No 11125 of December 22 1997) (Resolution No 11125) expressly declared to be no longer into force.
Article 58 of Regulation No 11971 clears that Consob authorizes the use in Italy of a prospectus approved by another member state to the extent that the following documents are deposited with Consob:
- evidence of the approval given by the foreign competent listing authority;
- the foreign offering circular is filed together with an Italian translation certified as conformed to the original by the issuer;
- the request for the listing in Italy is filed with Consob within three months from the foreign listing; and
- the offering circular is accompanied by an express note on the Italian tax aspects of the securities offered.
Notwithstanding the clear and simple wording of the current legislation, even strengthened by the fact that the previous requirement that prospectuses for Italian issuers whose securities were to be listed in Italy had to comply with Italian regulations (see Article 10 of Resolution No 11125) was no longer included, Consob is de facto imposing again on Italian issuers to redraft a new Italian prospectus without allowing them to use the foreign prospectus filed with a foreign stock exchange.
The approach which Consob is taking is clearly prejudicial and discriminatory towards Italian issuers and is not justified by the existing legislation. A radical change in the near future would be welcomed to overcome the current unjustified situation.