Resolution no. 22410

Suspension, pursuant to article 99, paragraph 1, letter a) of Legislative Decree no. 58/1998, of the offer to the Italian public of security tokensnamed Enercom Tokens carried out by Enercom AG and also through the website www.enercom.ag and the respective pages https://kyc.enercom.ag and https://sales.enercom.ag

La Commissione Nazionale per le Società e la Borsa
[The National Commission for Companies and the Stock Exchange]

HAVING REGARD TO Law no. 216 of 7 June 1974 and subsequent amendments and supplements;

HAVING REGARD TO Legislative Decree no. 58 of 24 February 1998 and subsequent amendments and supplements (‘Consolidated Law on Finance’);

HAVING ESTABLISHED that website www.enercom.ag and the respective pages https://kyc.enercom.ag and https://sales.enercom.ag were found on the internet and that the aforementioned domains were active and attributable to the company Enercom AG, based in Liechtenstein;

HAVING ESTABLISHED that the website www.enercom.ag was partially available in Italian: in particular, the pages https://kyc.enercom.ag and https://sales.enercom.ag were both available in Italian, and both belonged to the site www.enercom.ag and allowed all users to register on the site www.enercom.ag;

HAVING ESTABLISHED that, through the website www.enercom.ag and its pages https://kyc.enercom.ag and https://sales.enercom.ag – where there are also references to Enercom's business projects in telecommunications and renewable energy – a public offering of Enercom Tokens is made, including towards the Italian public;

HAVING ESTABLISHED, in particular, that the website www.enercom.ag and the relevant pages https://kyc.enercom.ag and https://sales.enercom.ag allow access to the prospectus relating to the offer of 200,000 Enercom Tokens approved and published by the Liechtenstein Supervisory Authority (FMA) on 21 November 2019 and that said prospectus – valid until 20 November 2020 – has never been notified to Consob and, in any case, to date, is no longer valid;

HAVING ESTABLISHED that, in the offer documentation, it is specified, among other things, that:

- Enercom Tokens, issued in the form of tokens on the Ethereum blockchain, constitute "non-voting bearer preference share with no par values" ("preferred bearer shares without voting rights") "each with a notional value of EUR 10.00" whose "bid price" is equal to "ETH0.69 or EUR 100.00";

- Enercom AG’s offer relates to 200,000 Enercom Tokens "not admitted to trading on a regulated market";

- "The subscription process of Enercom Tokens will take place online at https://kyc.enercom.ag/";

- “The purpose of the Issuer is to invest in renewable energy projects and telecommunications projects”.

HAVING ESTABLISHED moreover that through the web page https://kyc.enercom.ag – directly accessible from the homepage of the site www.enercom.ag and available in Italian – it is possible, including for users connectedfrom Italy/through Italian IP addresses, to register on the website www.enercom.ag, view documents present there relating to the company Enercom AG and Enercom Tokens as well as purchase one or more Enercom Tokens;

HAVING ESTABLISHED, moreover, the presence on the internet of a video in Italian published on Facebook on 18 May 2022, entitled "Security tokens, scopriamo un nuovo strumento finanziario" where an associate/employee of Enercom AG appears as a speaker andwho, as part of the aforementioned webinar, illustrates, among other things, the possibility for anyone to "register as a associate on Enercom without cost and open a company with Enercom AG selling our products", and to "conduct networking by inviting other people to become associates" who are interested in the project so as to be able to "earn on the turnover of the whole group" specifying that "our token [Enercom Token, editor’s note] is in the process of being placed, we still have a year to be able to place our security token";

HAVING ESTABLISHED moreover that, as part of the video of 18 May 2022, certain referral links appear in the video through which it was possible, for any user, to register on the site enercom.ag also as an "Associate" of "Enercom" through the additional domain https://sales.enercom.ag, which was available in Italian;

HAVING ESTABLISHED that, once the registration through the domain has been completed https://sales.enercom.ag, the user can complete the identity verification, then continue through this page to purchase Enercom Tokens and consult certain documents relating, in particular, to an affiliate system connected to "Enercom" which outlines the possibilities for each user of the "Community" to create their own network of affiliates and to receive, among other things, remuneration according to the number of tokens directly owned by the user or purchased by the parties referred directly by the user themselves;

HAVING ESTABLISHED that some Enercom Token subscribers reported that they became aware of the possibility of purchasing such assets and of participating in the "Enercom" network as part of separate meetings/webinars held onlineand specifically dedicated to potential customers residing in Italy;

HAVING ESTABLISHED moreover that, despite the warnings, not shown in Italian, on the website www.enercom.ag which informed users that "Enercom AG is not authorised to sell Enercom Tokens in all countries of the world [...] the offer is not allowed in your country" (editor’s note) and, furthermore, that the offer was purportedly addressed exclusively to "qualified investors", it was however possible, also for the user connected to the web from Italy/via Italian IP address, to register with the website www.enercom.ag both through the page https://kyc.enercom.ag and through the additional page https://sales.enercom.ag, without the users being required to demonstrate, in any way, that they meet the requirements of a "qualified investor" referred to in Art. 2 of Regulation (EU) 2017/1129;

HAVING ESTABLISHED that, as a result of the dialogue with Enercom AG, initiated by the undersigned also in order to draw the attention of Enercom AG towards the regulations in force in Italy regarding the offer of financial products and instruments to the public, the Company has, among other things, stated: that Italy has become an important reference market for Enercom thanks to the aforementioned "affiliation" system and that therefore there are Italian savers who have subscribed Enercom Tokens; that the offer was purportedly only addressed to "qualified investors";

HAVING ESTABLISHED, however, that, as previously specified, the website www.enercom.ag and the relevant pages https://kyc.enercom.ag and https://sales.enercom.ag allow users who accesses it to purchase Enercom Tokens without being specifically required to demonstrate that they meet the requirements of a "qualified investor" referred to in Article 2 of Regulation (EU) 2017/1129;

HAVING REGARD TO the fact that, according to the definition under art. 1, par. 1, letter t) of Leg. Decree no. 58/1998, a “public offer of financial products” must be understood to mean “any communication made to people, in any form and by any means, that presents sufficient information about the conditions of the offer and the financial products offered so as to render an investor capable of deciding to buy or underwrite such financial products, including the placement by means of licensed parties”;

WHEREAS the elements of the public offer relevant for the purposes of this provision can be summarised as follows:

a) the fact that the activity involves a specific or several specific “financial products”, a category that includes - pursuant to art. 1, par. 1, letter u), of the Consolidated Law on Finance, both the typified characteristics of “financial instruments” and “every other form of investment of a financial nature”;

b) the existence of communication intended to persuade investors to purchase or subscribe to these financial products and a description of the main characteristics thereof;

c) the fact that the offering in question is directed towards Italian residents;

WHEREAS the purpose of the negotiation proposal of Enercom AG is unequivocally to sell a shareholding ("non-voting bearer preference share" – Enercom Tokens) and as such falls within the notion of transferable assets pursuant to art. 1, paragraph 1- bis, letter a) of the Consolidated Law on Finance;

CONSIDERING, therefore – given that transferable assets are deemed to belong to the category of financial instruments – that, in relation to this hypothesis, the subject of the negotiation proposal satisfies the conditions pursuant to art. 1, paragraph 1, letter u) of the Consolidated Law on Finance as a "financial instrument" and, in particular, that, pursuant to the provisions of art. 93-bis paragraph 1, letter c) of the Consolidated Law on Finance, the aforementioned transferable assets are considered "securities";

CONSIDERING, therefore, that the requirement set out in letter a) is also met;

HAVING ESTABLISHED that the website www.enercom.ag and the relevant pages https://kyc.enercom.ag and https://sales.enercom.ag contain information about the characteristics and the essential conditions of the aforementioned negotiating proposal since, in particular, said domains contain the Enercom Token prospectus and the related supplement, which are no longer valid, and, therefore, the initiative is promoted in standardised and uniform terms suitable for enabling investors to assess whether or not they wish to subscribe the security;

CONSIDERING, therefore, that the requirement set out in aforementioned letter b) is also met;

HAVING ESTABLISHED moreover that numerous elements have been acquired in the records that, overall, lead to the belief that, through a plurality of channels (websites, videos, webinars, etc.) and operating methods (referral links, affiliate systems), all attributable to Enercom AG, the Enercom Tokens offer is also addressed Italian residents. In particular:

- the website www.enercom.ag is partially available in Italian: in fact, the registration page for new users was available in Italian available at the address https://kyc.enercom.ag; the additional page https://sales.enercom.ag was also available in Italian, through which it is also possible for any user to register on the website www.enercom.ag and become a "associate" of the "EnerCommunity";

- no mechanism was found to limit or exclude the registration to the website www.enercom.ag by users connected from Italy/through Italian IP addresses. In addition, despite the aforementioned warnings/pop-ups on the website www.enercom.ag, no mechanisms were detected to verify that the user meets the requirements to be classified as a "qualified investor";

- evidence was acquired in the records about certain video presentations relating to the "Enercom" initiative, carried out by employees/associates of Enercom AG, in which the possibility of joining the "Enercom" offer is illustrated, as well as being able to join, through specific referral links, an affiliation system established and promoted by Enercom AG – as confirmed by Enercom AG during our communications – aimed at establishing a network of associates as well as promoting the subscription of Enercom Tokens by an ever increasing number of users;

- elements have been acquired regarding how Italian savers have subscribed/purchased Enercom Tokens;

CONSIDERING, therefore, that the requirement set out in letter c) is also met, since the offering in question is aimed at Italian residents;

CONSIDERING, therefore, that the activity carried out by Enercom AG through the website www.enercom.ag and the respective pages https://kyc.enercom.ag and https://sales.enercom.ag has the characteristics of a public offering of financial products as defined above;

HAVING REGARD TO art. 94, paragraph 1, of the Consolidated Law on Finance, pursuant to which "The public offering of securities is governed by the prospectus regulations and implementing provisions, as well as by the provisions of this section";

HAVING REGARD TO article 94, paragraph 3, of the Consolidated Law on Finance, pursuant to which “Any party intending to offer securities to the public must request for the prospectus to be approved by Consob”;

HAVING REGARD TO Article 24 (1) of EU Regulation 2017/1129, pursuant to which "Without prejudice to Article 37, where an offer of securities to the public or admission to trading on a regulated market occurs in one or more Member States, or in a Member State other than the home Member State, the prospectus approved by the home Member State and any supplements thereto shall be valid for the offer to the public or the admission to trading in any number of host Member States, provided that ESMA and the competent authority of each host Member State are notified in accordance with Article 25";

HAVING ESTABLISHED that the prospectus approved by the Liechtenstein Supervisory Authority (FMA) in November 2019, which was never notified to Consob, is no longer valid;

HAVING ESTABLISHED, moreover, that in relation to the offer to the public made by Enercom AG, Consob has not received the request for approval of the prospectus;

HAVING ESTABLISHED that the offer of Enercom Tokens, based on current evidence, is not applicable for any of the hypotheses of exemption - provided for by the combined provisions of articles 100 of the Consolidated Law on Finance and 34-ter of the Issuers' Regulation - from the application of the rules on the "appeal to public savings" referred to in articles 93-bis et seq. of the Consolidated Law on Finance, since, although Enercom AG has declared that the offer is addressed exclusively to qualified investors, no mechanisms have been detected in the registration procedure to verify, in practice, the user's possession of the requirements of qualified investor;

WHEREAS, therefore, there is a well-founded suspicion of the promotion of a public offering of financial products in breach of applicable legislation and regulations;

HAVING ESTABLISHED that the public offer of "Enercom Tokens" is still ongoing;

HAVING REGARD TO article 99, paragraph 1, letter a) of the Consolidated Law on Finance, according to which Consob: “may: ... b) suspend as a precautionary measure, for a period not exceeding ten consecutive working days, any offer concerning financial products, in the event of a well-founded suspicion of breach of the provisions of this Chapter or of the related implementing rules”;

WHEREAS, given the existence of the above conditions, there is an urgent need to adopt the measure identified above;

RESOLVES:

To suspend, as a precautionary measure, for a period of 10 working days, the offer to the public resident in Italy of Enercom Tokens promoted by Enercom AG, including through the website www.enercom.ag and the respective pages https://kyc.enercom.ag and https://sales.enercom.ag.

This Resolution shall be brought to the attention of the concerned parties and published in the Consob Bulletin.

This measure may be appealed before the Regional Administrative Court of Lazio within 60 days of the date of service.

20 July 2022

THE CHAIRMAN
Paolo Savona