Resolution no. 22694

Order, pursuant to article 7-octies, paragraph 1, letter b) of Legislative Decree no. 58/1998 ("Consolidated Law on Finance") to cease the infringement of article 18 of the Consolidated Law on Finance carried out via the website https://xtbempire.com and its page https://client.xtbempire.com

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, as subsequently amended and supplemented;

HAVING REGARD TO Legislative Decree no. 58 of 24 February 1998 ("Consolidated Law on Finance"), as subsequently amended and supplemented;

HAVING ESTABLISHED that, from checks on the web, it emerged that:

1. potential investors are offered the opportunity through the website https://xtbempire.com – which is active, available in Italian and registered anonymously – to trade CFDs on currencies, shares, indices, bonds, digital currencies and commodities;
2. in order to carry out the aforementioned trading, users are required to register and open an account where they can deposit relevant funds; in particular, four types of account are mentioned, called "Silver", "Gold", "Diamond" and "VIP" ("Argento", "Oro", "Diamante" and "Vip"), depending on the minimum deposit required and the benefits offered;
3. after registering, users can log into the reserved area of the website at the URL address https://client.xtbempire.com; in this area there is also a "Referral Link" called "Invitation" to invite potential new users;
4. as for the traceability of the activity in question, the contractual document "Terms and Conditions" states: "this website is operated by XTB Empire LTD", allegedly having its registered office in the United Kingdom;

WHEREAS the activity carried out via the website https://xtbempire.com and its page https://client.xtbempire.com is deemed to constitute the provision of investment services, as referred to in article 1, paragraph 5, of the Consolidated Law on Finance, insofar as users are offered the opportunity through the aforementioned domains to open a trading account and place orders to buy and/or sell financial instruments;

WHEREAS the above described activity, carried out via the website https://xtbempire.com and its page https://client.xtbempire.com, is still ongoing and is aimed at Italian investors, given that the aforesaid domains are available in Italian and there have been reports of cold calls being made to retail investors in Italy regarding the initiatives promoted via the website https://xtbempire.com. Furthermore, complaints have been received from Italian retail investors who complained about not being able to obtain a refund of the capital deposited to trade via the website https://xtbempire.com and it was ascertained that there are no mechanisms aimed at preventing registration by users who attempt to register with the website https://xtbempire.com from Italy through Italian IP addresses;

WHEREAS XTB Empire LTD, as mentioned on the website https://xtbempire.com, is not authorised to provide investment services to the Italian public, insofar as it is not listed on the register maintained by Consob pursuant to article 20 of the Consolidated Law on Finance;

HAVING REGARD TO the requirement to hold a relevant licence to provide investment services and activities as per article 18, paragraph 1, of the Consolidated Law on Finance, pursuant to which "The professional provision of investment services and activities to the public is reserved to Italian investment firms, EU investment firms, Italian banks, EU banks and non-EU firms";

HAVING ESTABLISHED, therefore, that the operations in question qualify as the professional provision of investment services to the Italian public, in infringement of article 18, paragraph 1 of the Consolidated Law on Finance;

HAVING REGARD TO the fact that, according to the provisions of article 7-octies, letter b) of the Consolidated Law on Finance - "Powers to counteract unauthorised provision of investment services" - Consob "may, with regard to anyone who offers or carries out investment services or activities over the Internet without being qualified pursuant to this decree: […] b) order that the infringement cease";

CONSIDERING it therefore necessary, in the light of the foregoing, to adopt this Resolution immediately for reasons of urgency;

RESOLVES:

To order the cessation of the infringement of article 18 of Legislative Decree no. 58/98 carried out through the website https://xtbempire.com and its page https://client.xtbempire.com, consisting in the offering and provision of investment services and activities to the Italian public.

This Resolution shall be brought to the attention of all 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.

11 May 2023

THE CHAIRMAN
Paolo Savona