Resolution no. 21251

Prohibition, pursuant to article 99, paragraph 1, letter d) of Legislative Decree no. 58/1998 of the public offering concerning the initiative entitled "Omega Best" through the website www.omega.best

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 and subsequent amendments and supplements (‘Consolidated Law on Finance’);

HAVING ESTABLISHED that, as a result of the supervisory activity carried out by Consob, evidence has been acquired on the performance of an activity that consists in proposing, even to persons residing in Italy, that investors invest their money to purchase advertising packages called "Active Boxes" in exchange for potentially high returns;

HAVING ESTABLISHED that the site www.omega.best, linked to Expedite Spzoo with alleged offices in Poland, and Nautilius Investment Ltd, with offices in the United Arab Emirates, states that "Omega Best" offers "a modern method of earning online". In particular, the site states that "the Active Box package is a unique blend of market research, advertising services and tasks that ... increases your profits, makes your business grow”;

HAVING ESTABLISHED that by registering to this site from an Italian IP an Italian user can access some subsections, including a reserved "back-office" area in Italian, dedicated to the initiative called "Omega Best". The aforementioned "advertising packages" can be purchased through this reserved area. The purchase of these "advertising packages" can be made through various payment methods, including bank transfer: when selecting this option, users are shown the IBAN code of a Polish company: "Jax Pay Spzoo";

HAVING ESTABLISHED that this initiative was sponsored on the internet, where some details on its modes of operation were provided, with video clips. In particular, having regard to the return, these details advanced the possibility of "earning passive returns even without networking" by choosing two types of "Active Box" called "Active Box 6 months" and "Active Box 12 months", which would enable purchasers to obtain a daily "passive return" of 0.71% (for six months) and 0.42% (for 12 months), once web marketing activities have been carried out.

On this point it was also specified that if the user does not intend to carry out the web marketing activities, the daily "return" linked to the two "Active Boxes" would be 0.355% (for six months) and 0.21% (for 12 months);

HAVING ESTABLISHED that there is also the possibility of receiving extra bonuses, linked to an affiliation plan, related to these investments linked to the purchase of "Active Boxes";

HAVING FURTHER ESTABLISHED, that, in response to our request for information - which also drew attention to the fact that the activity in question is potentially capable of constituting an offer of financial products to the public - no feedback was provided;

HAVING ESTABLISHED that the structure of the transaction is presented as an investment opportunity, since the initiative promoted by Expedite Spzoo and Nautilius Investment Ltd offers users the opportunity to buy advertising packages to receive periodic returns, dependent or otherwise on the task of viewing a certain number of ads per day, or of completing a survey and commenting on an article but especially in proportion to the quantity of "Active boxes" purchased;

HAVING REGARD TO the fact that, according to the definition under Art. 1, para. 1, letter t) of Consolidated Law on Finance a "public offering [of financial products]" must be understood to mean "any invitation to offer or promotional message, in whatsoever form addressed to the public, whose objective is the sale or subscription of financial products including the allocation through authorised people”;

HAVING CONSIDERED that the elements of the public offering 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, para. 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 a communication intended to persuade investors to purchase or subscribe one or more specific financial products and, consequently, including at the very least a description of their essential characteristics and conditions;

c) the representation of the offering in uniform and standardised terms and the consequent impossibility for the individual investor to intervene in the formation of the contractual agreement and on the subsequent use of the money paid;

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

WHEREAS the notion of an "investment of a financial nature" implies the presence of three elements at the same time: (i) an investment of capital; (ii) an expectation of return of a financial nature; (iii) the assumption of a risk connected to the investment of capital;

WHEREAS the structure of the operation in question envisages that (a) the user uses his/her own capital for the purchase of advertising packages (b) by virtue of the aforesaid purchase is promised a predetermined return (c) resulting in the assumption of a risk related to the use of the capital entrusted;

HAVING ESTABLISHED that the above-mentioned return is paid against the use of the capital of the investor and that the return is related to the amount paid for the purchase of the "Active Boxes", rather than the number of views, considered that the user receives the return without performing any web marketing activities;

WHEREAS, consequently, the consideration in the contract in question can be linked to the production of a financial return as fee for the use of capital transferred by the recipients of this return, who, therefore, invest their own money with the expectation of profit;

CONSIDERING therefore, that, with regard to the existence of the requirement referred to in letter a), namely, that the offering in question can be classified as a "financial product", the investment considered, based on the foregoing, qualifies as an "investment of a financial nature";

HAVING ESTABLISHED that the initiative named "Omega Best" has been promoted in standardised and uniform terms, through a presentation of the initiative that contains a representation of the characteristics of the investment scheme in such a way as to render the investor capable of deciding whether or not to subscribe to it;

HAVING ESTABLISHED therefore, that the requirement set out in letters b) and c) is met;

HAVING ALSO ESTABLISHED that there is unequivocal evidence that the offer in question was addressed to the public resident in Italy because the contents published on the website www.omega.best are also available in Italian and it is possible to register to the website also from an Italian IP. Finally, the "Omega Best" initiative was also promoted through an event that took place at a hotel in Italy;

HAVING ESTABLISHED that there was also a Multi Level Marketing system with a guarantee for the affiliates who recruit new subjects, to be included in the distribution chain at a lower level, on sales made by the latter;

CONSIDERING, therefore, that the requirement set out in letter d), is met, since the offering in question is aimed at the public resident in Italy;

CONSIDERING, as a consequence, that the "Omega Best" initiative set up by the website www.omega.best to promote the purchase of advertising packages has the characteristics of a public offering of financial products as defined above;

HAVING REGARD TO Article 94, paragraph 1 of the Consolidated Law on Finance stating: "Persons who intend to make a public offering shall publish a prospectus in advance. To this end, for offerings to the public of EU financial instruments for which Italy is the Home State, and for offerings of financial products other than EU financial instruments, they shall give advance notice thereof to Consob, attaching the prospectus to be published. The prospectus cannot be published until it has been approved by Consob";

HAVING ESTABLISHED that, in relation to the activity described, neither prior notification nor the information prospectus intended for publication were sent to CONSOB;

HAVING ESTABLISHED that, on the basis of current evidence, the offering in question 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 CONSOB’s Resolution no. 21148 of 13 November 2019, with which, pursuant to Art. 99, para. 1, letter b), of Legislative Decree no. 58/98, CONSOB implemented the precautionary suspension measure, for a period of ninety days, for the offer to the public resident in Italy regarding an investment of a financial nature carried out through the website www.omega.best;

WHEREAS Expedite Spzoo did not submit any observations even after the suspension measure;

WHEREAS, therefore, in the light of the investigation outlined above and 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 in the suspension measure are considered to have been ascertained;

CONSIDERING, therefore, that it has been ascertained that - according to the methods described above - an offering to the public has been made concerning investments of a financial nature in breach of the above law;

HAVING REGARD TO Art. 99, para. 1, letter d) of Legislative Decree no. 58/98, pursuant to which CONSOB may "prohibit the public offering if violation of the provisions or regulations referred to under paragraphs a) or b) are confirmed";

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

RESOLVES:

The activity of offering to the public resident in Italy (of the product called) "Omega Best" linked to the purchase of advertising packages called "Active Boxes", undertaken by Expedite Spzoo and Nautilius Investment Ltd through the website www.omega.best is prohibited.

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.

February 5, 2020

THE CHAIRMAN
Paolo Savona