Resolution no. 22883

Order, pursuant to article 7-octies, paragraph 1, letter b) of Legislative Decree no. 58/1998 ("Consolidated Law on Finance") to cease the breach of article 18 of the Consolidated Law on Finance carried out via the https://smartflow.work website and its https://office.smartflow.work and https://trade.smartflow.work pages

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. the https://smartflow.work website offers potential investors the opportunity to trade on the foreign exchange market and on indices, shares, commodities and digital currencies;
2. to carry out such trading, users must register on the website through the domain https://office.smartflow.work, and subsequently open a trading account;
3. after registering, users may access the reserved area of the website, available on the aforementioned domain https://office.smartflow.work, which contains, among others, a function dedicated to making deposits and where it is possible to access the trading platform available at the address https://trade.smartflow.work;
4. as to traceability, the https://freetrade-cfd.com website generically refers to "Smart Flow Ltd", with its alleged registered office in Australia, and also provides the contact email address hello@company.com.

WHEREAS the activity carried out through the website https://smartflow.work and the respective pages https://office.smartflow.work and https://trade.smartflow.work is deemed to constitute the provision of investment services pursuant to article 1, paragraph 5, of the Consolidated Law on Finance, given that the above domain allows users to trade financial instruments;

WHEREAS the aforementioned activity is still ongoing and is aimed at Italian investors, insofar as the section dedicated to registering and the reserved area of the website are also available in Italian, there have been reports of cold calling of Italian investors, and moreover no mechanism was found to block registration by users attempting to register on the website from Italy through Italian IP addresses;

WHEREAS the https://smartflow.work website and its respective https://office.smartflow.work and https://trade.smartflow.work webpages cannot be attributed to any entity authorised to provide investment services to the Italian public;

HAVING REGARD to the fact that the provision of investment services and activities is reserved to licensed parties as referred to under 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 activities in question qualify as the professional provision of investment services to the Italian public, in breach of Article 18, paragraph 1 of the Consolidated Law on Finance;

HAVING REGARD to the provisions of Article 7-octies, letter b) of the Consolidated Law on Finance - "Powers to counteract unauthorised provision of investment services" - pursuant to which 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: […] b) order the cessation of the infringement";

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 breach of article 18 of Legislative Decree no. 58/1998 carried out through the https://smartflow.work website and the https://office.smartflow.work and https://trade.smartflow.work pages, constituted by the offering and provision of investment services and activities to the Italian public.

This Resolution shall be brought to the attention of 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.

8 November 2023

THE CHAIRMAN
Paolo Savona