Resolution no. 20641

Prohibition, pursuant to art. 99, para 1, letter d), of legislative decree no. 58/1998, of the provision of financial instruments to the public resident in Italy for investments of a financial nature promoted through the www.opcompany.net website

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 June 7, 1974, and subsequent amendments and additions;

HAVING REGARD TO Legislative Decree no. 58 of February 24, 1998 and subsequent amendments and additions ("Consolidated Law on Finance");

HAVING ESTABLISHED that evidence acquired supervisory activity undertaken by CONSOB has revealed activity consisting of the offer, including for residents in Italy, to purchase standardised shares of "managed accounts" through the www.opcompany.net website;

HAVING ESTABLISHED, in particular, that checks on the www.opcompany.net website revealed that:

i. the www.opcompany.net website is available in Italian and is attributable to "OPC Services Ltd" with registered address in Malta;

ii. potential investors, subject to prior registration on the website, can purchase in the "Shop" section one or more shares worth 200 euro each, choosing between the managed accounts called “Binary Options Managed Account”, and “Forex Managed Account”, with the promise of very high returns. In this regard, the website states that “Each share is worth 200 euro and are available for single or multiple subscription; the cost of monthly subscription may vary over time at our discretion";

iii. the website also indicates that “Iif you do not have experience in the sector and sufficient capital to trade safely, you can take a share by choosing between our two accounts”;

iv. the profits achieved over the months are published in the "Return" section.

HAVING ESTABLISHED, furthermore, that, despite the requests from CONSOB, no useful information relating to the initiative was provided;

HAVING ESTABLISHED that the transaction structure was presented as an investment opportunity;

HAVING REGARD TO the fact that, according to the definition under art. 1, para. 1, letter t) of Leg. Decree no. 58/1998, an “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 placement by means of licensed bodies";

HAVING CONSIDERED that the elements constituting the offer to the public can be summed up as follows:

a) the fact that the activity involves “financial products”, a category that includes, pursuant to art. 1, para. 1, letter u) of Leg. Decree no. 58/1998, both the “typical” “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, consequently, including at the very least a description of their main characteristics;

c) the fact that the communication in question is directed at Italian residents;

HAVING CONSIDERED that the notion of “investment of a financial nature” implies the coexistence of the following three elements: (i) investment of capital; (ii) the expectation of a financial return; (iii) the assumption of risk directly connected and related to the investment of capital;

HAVING CONSIDERED that the structure of the transaction encountered requires that (a) the subscribing party uses his own capital to purchase the shares (b) a return is promised on the basis of this purchase (c) with the consequent assumption of risk related to the investment of the capital provided;

HAVING ESTABLISHED, therefore, that the aforementioned return would be paid against the investment of the investor’s capital;

HAVING CONSIDERED, therefore, that the reason of the contract in question is attributable to the production of a financial return as consideration for the use of capital entrusted by the recipient of the return himself, who, therefore, provides his own money with an expectation of earning a profit, namely the growth of the cash invested;

HAVING CONSIDERED, therefore, that -with regard to the existence of the requirement referred to in letter a), i.e. the offer of something regarded as a “financial instrument” - the trade proposals offered via the www.opcompany.net website, on the basis of that illustrated, have the characteristics of "an investment of a financial nature”;

HAVING ESTABLISHED that the contents of the www.opcompany.net website outlined above provide a uniform representation of the investment proposals characteristics, suitable to rendering investors capable of deciding whether or not to subscribe to the initiative;

HAVING FOUND therefore, that the requirement set out in letter b) is met;

HAVING ESTABLISHED, furthermore, that there are unequivocal indications that the offer in question was addressed to the public resident in Italy, insofar as the contents of the www.opcompany.net website were available in Italian;.

HAVING FOUND, therefore, that the requirement set out in letter c) is met, resulting in the offer in question being addressed to Italian residents;

HAVING FOUND, therefore, that the activity implemented via the www.opcompany.net website has the characteristics of the public offer of financial instruments as defined above;

HAVING REGARD TO art. 94, para. 1, of Legislative Decree no. 58/1998, pursuant to which ‘Anyone intending to make an offer to the public must publish a prospectus in advance. To this end, for offers involving Community financial instruments in which Italy is the Member State of origin and for offers involving financial products other than Community financial instruments, prior notification shall be sent to CONSOB, attaching the prospectus intended for publication. The prospectus cannot be published until it is approved by CONSOB’;

HAVING ESTABLISHED that, in relation to the activity implemented via the www.opcompany.net website, CONSOB received neither prior notification nor the information prospectus intended for publication;

HAVING ESTABLISHED that the offer in question, on the basis of current evidence, does not qualify for any of the exemptions - contemplated by the combined provisions of art. 100 of Legislative Decree no. 58/98 and art. 34-ter of CONSOB Regulation no. 11971/98 - from enforcement of the rules on ‘solicitation of public savings’;

HAVING REGARD TO Resolution 20443 of May 15, 2018, with which CONSOB, pursuant to art. 99, paragraph 1(b) of Legislative Decree 58/98 adopted measures for a ninety day precautionary suspension of the offer to the Italian public of investments of a financial nature performed via the www.opcompany.com website;

HAVING CONSIDERED that OPC Services Ltd, to which the www.opcompany.net website can be attributed, has failed to respond to the facts presented as grounds for the suspension measure;

HAVING CONSIDERED therefore, that in the absence of any evidence to suggest a situation other than that outlined in the aforementioned suspension measure, the circumstances de facto and de jure established under this suspension must be considered ascertained;

HAVING FOUND, therefore, that the public offer of investments of a financial nature in infringement of the regulations cited above has been established, according to the methods described above;

HAVING REGARD TO art. 99, para. 1, letter d) of Legislative Decree no. 58/98, on the basis of which CONSOB may ‘prohibit the public offering where there is the ascertained infringement of the provisions or regulations referred to under paragraphs a) or b)’;

HEREBY RESOLVES:

To prohibit the offering of investments of a financial nature to the public resident in Italy promoted through the www.opcompany.net website.

This Resolution shall be brought to the attention of those concerned and published in CONSOB’s Bulletin.

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

October 24, 2018

THE DEPUTY CHAIRMAN
Anna Genovese