1. Introduction
On 27 March 2026, Legislative Decree No. 39 of 13 March 2026 transposing Directive 2024/927/EU (known as AIFMD 2) in Italy (the Italian AIFMD 2 Decree) was published in the Official Gazette. The Italian AIFMD 2 Decree amends the Italian Consolidated Financial Act (Legislative Decree No. 58 of 24 February 1998), particularly Title III of Part II dealing with asset management.
The provisions of the Italian AIFMD 2 Decree will apply as from 16 April 2026. The Bank of Italy and CONSOB shall adopt implementing provisions within their respective remits by 16 October 2026. This should include provisions on supervisory reporting, which will apply from 16 April 2027.
In this article we look at the main changes brought for AIFMs by the Italian AIFMD 2 Decree, with particular focus on the regime for loan origination by EU AIFs in Italy and cross-border management and distribution activities.
2. Overview of the key provisions of AIFMD 2
AIFMD 2 introduces a number of targeted reforms across the European fund regulatory framework, amending both the AIFMD and the UCITS Directive. The Directive sets out enhanced provisions on delegation, liquidity and risk management, investor disclosure, supervisory reporting, depositary and custody services.
In addition, AIFMD 2 introduces a harmonised EU regime for loan originating AIFs. Such funds are defined by reference to their investment strategy or by quantitative thresholds based on the proportion of loans, and are generally required to be closed ended, subject to limited exceptions. The Directive imposes leverage and concentration limits for loan-originating AIFs and prohibits originate to distribute models aimed solely at the resale of loans. AIFMD 2 also requires AIFMs to implement robust procedures for credit granting, credit risk assessment and portfolio monitoring, to be reviewed at least annually.
3. The new regime for loan origination by EU AIFs
Under the legal framework currently in force in Italy, EU AIFs may lend in Italy only with prior authorisation from the Bank of Italy (in the form of tacit consent). This authorisation is conditional on certain requirements, including demonstrating that the EU AIF has an organisational structure equivalent to that of an Italian credit fund, with the authorisation process being formally subject to a minimum duration of two months. Once authorised, EU AIFs are presently allowed to lend only to non-consumer borrowers and are subject to the Italian domestic conduct of business rules and reporting requirements. Please see our Rulefinder Cross Border Lending product for details.
As discussed in our article “AIFMD 2: Italy Poised to Liberalise EU AIF Lending” (AIFMD 2: Italy Eases EU AIF Lending Rules) published in January, the Italian AIFMD 2 Decree has radically changed the regime for EU AIFs intending to originate loans in Italy. Pursuant to the new regime, the prior authorisation from the Bank of Italy is no longer required, as EU AIFMs managing EU AIFs that intend to originate loans in Italy will only need to notify the Bank of Italy upon commencing lending activities in Italy.
In addition, the Italian AIFMD 2 Decree has repealed the current ban on AIFs originating consumer loans. This change is highly significant as EU AIFs will be permitted to lend to the general public in Italy, including consumers.
However, based on the explanatory memorandum that accompanied the draft decree in January, lending to consumers by (EU) AIFs is contingent upon the adoption of stringent secondary legislation by the Bank of Italy and CONSOB, aimed at ensuring protection of retail clients. Therefore, it is likely that EU AIFs will be subject to a new set of enhanced transparency requirements when lending to consumers. This should include compliance with the Italian rules applicable to mortgage credit and consumer credit, which are based on the relevant EU Directives. Such requirements will be set out in a regulation to be adopted by the Bank of Italy and CONSOB, which will supplement and integrate the Italian AIFMD 2 Decree.
4. Other relevant provisions for cross-border activities under the Italian AIFMD 2 Decree
4.1 New activities that can be carried out (and passported) by AIFMs
In line with AIFMD 2, the Italian AIFMD 2 Decree has clarified that the management of AIFs may comprise the activities of loan origination on behalf of an AIF and servicing securitisation special purpose entities. The Italian AIFMD 2 Decree has also added to the list of non-core services that can be carried out by an AIFM:
administration of benchmarks (with the exception of those which are used in AIFs managed by the AIFM), in accordance with Regulation (EU) 2016/1011
credit servicing activities, in accordance with Directive (EU) 2021/2167
In addition, based on the Italian AIFMD 2 Decree, an AIFM may provide to third parties any other function or activity that is already provided by the AIFM in relation to an AIF that it manages or in relation to services that it provides, on condition that any potential conflicts of interest arising from the provision of such functions or activities to third parties are managed appropriately.
4.2 Distribution and delegation
Pursuant to the Italian AIFMD 2 Decree, the marketing of units or shares of AIFs by distributors acting on their own account is not considered “delegation” provided that such units or shares are marketed in accordance with Directive 2014/65/EU (“MiFID 2”) or through insurance based investment products in accordance with Directive (EU) 2016/97 (“IDD”). This should eliminate concerns around the obligation to comply with delegation / outsourcing requirements in standard cross-border distribution models.
4.3 Depositary
It should be noted that the option to allow Italian AIFs to appoint a depositary located in another Member State has not been exercised by the Italian AIFMD 2 Decree. Accordingly, depositary functions for Italian AIFs may only be carried out by entities that are authorised by the Bank of Italy pursuant to the domestic provisions.
However, the Italian AIFMD 2 Decree permits depositaries authorised in Italy to act for AIFs established in other Member States, provided the relevant AIFMD 2 regime of the host Member State allows this.
4.4 Open-ended AIFs
The Italian AIFMD 2 Decree has introduced the possibility for Italian credit AIFs to be established as open ended vehicles, provided their AIFM can demonstrate to the Bank of Italy that the liquidity risk management system adopted by the AIFM is compatible with the AIF’s investment and redemption strategy. The Bank of Italy may prohibit the establishment of an Italian credit AIF in open ended form where it considers that the conditions laid down in the applicable EU and national legislation are not met.
This is a significant innovation in the Italian fund regime, which is based on a strict distinction between open-ended and closed-ended funds. Credit funds have traditionally fallen within the latter category, with all resulting consequences in terms of applicable prudential and offering regime.
4.5 Marketing in Italy of non-EU AIFs or EU AIFs managed by non-EU AIFMs
Finally, it is worth noting that the Italian AIFMD 2 Decree has not intervened on the existing regime for the marketing of non-EU AIFs or EU AIFs managed by non-EU AIFMs in Italy.
By way of background, it is currently not possible for EU AIFs managed by non-EU AIFMs and non-EU AIFs to be actively marketed to investors in Italy, as back in 2014/2015 the Italian implementation of Directive 2011/61/EU (“AIFMD 1”) did not adopt a private placement regime for the offer of those AIFs in Italy. Please see our Rulefinder Marketing Restrictions – Asset Management product for details.
5. Final thoughts: a significant market opening for lending by EU AIFs, but not without costs
The provisions of the Italian AIFMD 2 Decree on loan origination represent a significant opening of the Italian credit regulatory landscape. While this would mean that, from a licensing perspective, EU AIFs will no longer be required to obtain a prior authorisation from the Bank of Italy, it would also mean that, when lending to consumers in Italy, EU AIFs will very likely become subject to even stricter conduct of business requirements than those currently applicable.
Therefore, in addition to compliance with the new requirements envisaged under AIFMD 2 (including, by way of example, leverage and concentration limits, risk retention, disclosure and internal policy requirements), AIFMs managing EU credit AIFs that intend to operate in Italy will have to review their internal compliance model in order to ensure compliance with the local transparency and reporting requirements, as well as with the general consumer protection regime. Accordingly, it is expected that the impact of the new compliance obligations for EU AIFs lending into Italy will be most evident where the credit activities are carried on to consumers.
How aosphere can help
At aosphere, we are tracking progress on implementation across the EEA in our Rulefinder Marketing Restrictions – Asset Management and Rulefinder Cross Border Lending products. Our AIFMD 2 Implementation Tracker provides a consolidated overview of these developments for Italy and other Member States, including where national gold plating or divergence may arise.
