Where a firm located outside Italy deals with a client or a counterparty located in Italy, those activities will typically be considered to be subject to Italian laws and regulations unless it is clear that the firm was contacted by the Italian counterparty without any solicitation. Foreign service providers will need to consider whether they are triggering a local licensing requirement and whether they are complying with Italian marketing rules.

The marketing of financial/banking services to Italian residents will most likely constitute financial promotions, which would not be allowed if the foreign entity were not authorized to provide such services in Italy. Hence, no similar offers/solicitation directed to Italian residents should be made through any means within Italy, including any form of mass communication with the public or with groups of prospective investors, such as customers of a particular bank or any other financial institution. Marketing activities should generally be restricted to prospective clients residing in Italy that are believed to be “qualified investors,” as defined under the securities laws of Italy, but in any case at their unsolicited request. In this respect, however, since the Italian authorities have not released any official paper/guideline on the so-called reverse solicitation scheme (i.e., unsolicited investments of Italian residents), any similar scheme should be carefully evaluated on case-by-case basis, having regard to factual scenario. Note that the unauthorized performance of regulated financial activities constitutes a crime; criminal courts may have, and in the past often had, a different and stricter view than that of regulatory authorities of what can and cannot be done without possessing a license.

Under European law, firms established outside the European Economic Area (EEA) are called “Third Country Firms” (TCFs). Until recently, European laws have not sought to harmonize the approach of member states to TCFs. This meant that access to the markets of member states had to be considered on a case-by-case basis. However, the trend in European legislation is now toward harmonizing the approach across all member states to TCFs. On the one hand, this approach is likely to create a barrier to entry into European markets. On the other hand, firms that become compliant with new EU standards will be able to access the whole EEA market as opposed to having to consider the market on a country-by-country basis.

The following EU legislative measures may limit the ability of foreign firms to do business in Italy:

• The Alternative Investment Fund Managers Directive imposes limitations on non-EEA persons marketing fund interests to persons in Italy (and other European jurisdictions).
• The MiFID II regime (comprising a recast of the Markets in Financial Instruments Directive and a European regulation) results in greater restrictions on TCFs doing business in Italy.
• MiCAR prevents TCFs from providing crypto-assets and related services to clients established in the EU, unless such TCFs rely on the reverse solicitation exemption.