Resolution no. 21244

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 performed through the website www.fsmsmarts.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 and subsequent amendments and additions;

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

HAVING REGARD TO Resolution no. 20825 of 20 February 2019, whereby Consob ordered, pursuant to article 7-octies, letter b), of the Consolidated Law on Finance, the company FSM Smart Ltd, with its registered office in the Marshall Islands, to cease the infringement of Article 18 of the Consolidated Law on Finance conducted through the separate website www.fsmsmart.com;

HAVING ESTABLISHED that, from checks on the website www.fsmsmarts.com, it emerged that:

i. the website www.fsmsmarts.com - of content and graphic format substantially identical to the website www.fsmsmart.com - is written in Italian and contains an email address (cs-it@fsmsmarts.com) dedicated specifically to the public of Italian investors;

ii. potential investors are offered the opportunity to trade CFDs with currencies and other assets as their underlying assets, through the MT4 platform, subject to registration and opening of an account, through a specific form available on line;

iii. in order to be able to trade, a cash investment is required to be paid into an account opened online. In particular, the website offers various types of account, called “Beginner”, “Silver”, “Gold”, “Gold+” and “Platinum”, differing mainly in the amount of the minimum deposit and the benefitspaid to users;

iv. at the bottom of each page of the website, and in the “Contact us” section the company “FSM Smart Ltd” is indicated with “Representative Office” in Switzerland, while the “Terms & Conditions” states that “This Agreement is governed in accordance ... with the laws of Marshall Islands”.

WHEREAS the activity carried out through the website www.fsmsmarts.com can be classed as the provision of investment services as referred to in art. 1, paragraph 5 of the Consolidated Law on Finance, insofar as clients are offered the opportunity of opening a trading account against which purchase and/or sale orders for financial instruments can be issued;

WHEREAS the above transactions, carried out through the website www.fsmsmarts.com are ongoing and aimed at Italian investors, since the website is in Italian;

WHEREAS FSM Smart Ltd mentioned on this website, is not authorised to provide investment services to the Italian public, since this company does not appear on the dedicated register held by Consob pursuant to art. 20 of the Consolidated Law on Finance;

HAVING REGARD TO the fact that the provision of investment services and activities is reserved for the authorised entities referred to in art. 18, paragraph 1 of the Consolidated Law on Finance, pursuant to which, “The professional provision of investment services and activities for the public is reserved for investment firms, (and) banks ...”;

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

HAVING REGARD TO the fact that, according to the provisions of article 7-octies of the Consolidated Law on Finance - “Powers to counteract abusive practice” - CONSOB “may, with regard to anyone who offers or carries out investment services or activities over the Internet without being qualified to do so pursuant to this decree: a) make public, even by way of a precaution, the circumstance that the party is not authorised to carry out the activity indicated by art. 1, paragraph 5; b) order that the infringement cease”;

RESOLVES:

To order the cessation of the infringement of art. 18 of Legislative Decree no. 58/98 performed also through the website www.fsmsmarts.com consisting in the provision of investment services and activities to the Italian public.

This Resolution shall be brought to the attention of those whom it concerns and will be 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.

January 28, 2020

THE CHAIRMAN
Paolo Savona