Resolution no. 22138

Prohibition, pursuant to Art. 99, paragraph 1, letter c) of Legislative Decree no. 58/1998, of the offer to the public concerning the accounts and investment plans of Amicus Investment Ltd promoted through the website https://amicusinvest.net

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 7th 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, as a result of its supervisory activities, Consob acquired evidence regarding the services of the website https://amicusinvest.net which proposes to members of the Italian public to invest money in accounts and investment plans. Specifically, the "Products" section of the website advertises the "Conto Bonus in contanti" [Cash Bonus Account], the "Piano di risparmio regolare" [Regular Savings Plan] and the "Investimento unico" [Single Investment], which suggest high yields to potential investors. In particular, the "Cash Bonus Account" advertises a return of "3% annual interest, plus a bonus of 1% per year" with a "minimum investment for an Amicus Bonus Account in cash… of 2,000 USD or the equivalent in another currency"; the "Regular Savings Plan" is related to "a fixed-term account" (from 1 to 10 years) and offers "an interest rate of 6-10% payable per year" with a "minimum regular monthly investment... of 100 USD or the equivalent in another currency"; finally, the "Single Investment" contemplates a "duration of the Plan [...] of 3-120 months, with 4-9.50% interest per year". The website https://amicusinvest.net also contains a "Special Offers" section, targeting "investors ready to invest a minimum of 25,000 USD or the equivalent in foreign currency";

HAVING ESTABLISHED that the above accounts and investment plans are described in detail on the website and that customers are invited to pay funds towards the company based in the Marshall Islands "Amicus Investment Ltd";

HAVING ESTABLISHED in particular that the document available on the website named "Investment Agreement of Amicus Investment Ltd General Terms and Conditions" sets forth that the parties to the investment agreement are the client and "Amicus Investment Ltd - an international business corporation incorporated in The Republic of the Marshall Islands", and that the client opens a "cash account" on which he/she receives the yield described for in the investment contract which is entered into subject to prior payment of money to the company's account ("the account holder can make a payment to the bank account of Amicus. Amicus will thereafter open for the account holder the requested investment product assuming that all requested documentation is in order. At the time of the maturity of this investment product, the account holder will receive the agreed return to his/her/their Cash Account");

HAVING ESTABLISHED that the offer of the aforementioned investment programs was carried out through the website https://amicusinvest.net, which was active and also available in Italian via an automated translation system with which the site itself is equipped;

HAVING ESTABLISHED that in order to subscribe to the aforementioned investment initiatives it was necessary to register on the site https://amicusinvest.net through the specific section called "Registration" aimed at both individuals and companies and that in the registration procedure no blocking mechanisms have been identified aimed at inhibiting the registration of users with an Italian IP address;

HAVING ESTABLISHED that the site describes the mechanism according which the aforementioned accounts and investment plans are remunerated: in this regard, the yield promised to users is stated to derive from the company's returns from its assets in "investment portfolios" that include financial instruments and consumer loans. More in detail, the FAQs on the site state that the company is able to "pay such high interest rates [because] it invests more than half of its assets in a range of financial instruments such as consumer loan portfolios and corporate bond funds. The rest of our assets are invested in global shares";

HAVING REGARD to the communication with "Amicus Investment Ltd" as part of the investigative activity carried out;

HAVING REGARD to Consob Resolutions no. 19474 of 22 December 2015 and no. 19546 of 16 March 2016, which first suspended and then prohibited the similar offer to the Italian public of "guaranteed investment contracts", implemented by Amicus Investment Ltd through the separate website www.amicusinvest.com;

WHEREAS according to the definition under Art. 1, par. 1, letter t) of the 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 placement through licensed parties";

WHEREAS, in the present case, the elements of the public offering which are relevant for the purposes of such provision may be summarized 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 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;

HAVING ESTABLISHED that: (i) for the purposes of subscription to the above-mentioned accounts and investment plans, a variable amount of money is required to be paid, with a minimum investment of $100 (or equivalent in another currency) for the "Regular Savings Plan" and $2000 (or equivalent in another currency) for the "Cash bonus account"; (ii) in compensation for this payment an annual return of 3% to 10% is promised, which is financial in nature and consists of a prospective financial advantage in exchange for the prior payment of capital; (iii) the customer does not have any management autonomy and bears a financial risk linked to the capital contributed;

CONSIDERING therefore that, in light of the existence of the requirement referred to in letter a), i.e. an element of the offer qualifying as a "financial product", the accounts and investment plans offered through the site https://amicusinvest.net, as mentioned, possess the characteristics of an "investment of a financial nature";

HAVING ESTABLISHED that the website https://amicusinvest.net promotes the offer in standardized and uniform terms and describes the characteristics of the offer in such a way as to allow investors to evaluate whether to subscribe to the offer;

HAVING ESTABLISHED that, in addition, it appears possible to register online to subscribe to the aforementioned investment plans;

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

HAVING ESTABLISHED, moreover, that the offer in question is also addressed to residents of Italy, since:

a) the contents published on the site https://amicusinvest.net were also available in Italian through an automatic translation mechanism; in this regard, although the company stated, in response to the request of the writer, that the Italian translation of the site, originally in English, is the result of an autonomous choice of the user who decides to view the site in the national language, during checks carried out, the toolused for this purpose was found to be immediately available to the user who connects to the site https://amicusinvest.net. The user therefore does not need to take any autonomous action and to download any external application/software in order to consult the website in Italian;

b) within the site https://amicusinvest.net there was no explicit warning (disclaimer), adequately highlighted, which aims to clarify that the content of the site is directed only to residents of countries other than Italy (such disclaimer is present on the site for users of another nationality);

c) users who access the website from Italy were allowed to register;

HAVING REGARD, moreover, to the information provided by Italian savers, who complain about invested funds not being returned by Amicus Investment;

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

CONSIDERING, therefore, that the activity carried out through the website https://amicusinvest.net aimed at the promotion of the accounts and investment plans of Amicus Investment Ltd constitutes an offer to the public of financial products as defined above;

WHEREAS art. 94-bis of the TUF, in paragraph 1, establishes that "parties who intend to make an offer to the public of financial products other than securities and shares or open UCITS shares must publish a prospectus in advance. To this end, an application must be submitted to Consob for approval, with the draft attached. The prospectus cannot be published until it has been approved by Consob pursuant to article 95, paragraph 1, letter b)...".

HAVING ESTABLISHED that, in relation to the described activity, the prospectus intended for publication has not been sent to Consob;

WHEREAS, on the basis of the elements currently available, the offer does not qualify, moreover, for any of the exemptions - provided by the combined provisions of article 100 of the Consolidated Law on Finance and article 34-ter of Consob Regulation no. 11971/1999 ("Issuers' Regulation") - from enforcement of the rules on "solicitation of public savings" set forth by articles 93 bis et seq. of the Consolidated Law on Finance.

HAVING REGARD to Consob Resolution no. 22025 of 29 May 2021, whereby, pursuant to article 99, paragraph 1, letter b), of the Consolidated Law on Finance, Consob implemented the precautionary suspension measure, for a period of ninety days, of the offer to citizens residing in Italy involving accounts and investment plans promoted by Amicus Investment Limited through the website https://amicusinvest.net;

WHEREAS Amicus Investment Limited has sent no objections in response to the facts on which the suspension measure is based;

WHEREAS, therefore, given the results of the above investigation and the absence of any evidence that suggest a situation other than the case outlined by the above suspension measure, the circumstances de facto and de jure established in said precautionary suspension measure of the above Resolution are considered to have been ascertained;

CONSIDERING, therefore, that it has been ascertained that - according to the methods described above and noted at the time of adoption of the said precautionary suspension measure - an offering to the public has been made of financial products, sub-category "investments of a financial nature" in breach of the above law;

HAVING REGARD to Art. 99, paragraph 1, letter c) of the Consolidated Law on Finance, pursuant to which Consob may "prohibit the public offering if a violation is confirmed of the provisions of this Chapter or of the related implementation measures or if there are well-founded suspicions that such provisions or measures might be breached...";

RESOLVES:

To prohibit the activity of offering to Italian residents the accounts and investment plans of Amicus Investment Limited carried out through the website https://amicusinvest.net

This Resolution shall be brought to the attention of the person with whom it is concerned 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.

22 December 2021

THE CHAIRMAN
Paolo Savona