Crypt Trade is a platform for trading and advising services about cryptocurrencies based in Alicante (Spain) and Glasgow (UK). The platform was offering "cryptocurrencies' extraction kits" which involved (i) a certain quantity of cryptocurrencies already included in the kits, and (ii) a data mining service.
Investors were offered the right to resale periodically the cryptocurrencies to the issuer with a guaranteed profit. CONSOB qualified the offer as falling within the residual category of "investment having a financial nature", provided that the following requirements were met (see. Par. I), i.e., capital investment, expectation of a financial return, and assumption of a risk directly connected to the capital investment. It is worth noting that in this case CONSOB held that the offer was addressed to Italian investors because it was promoted through a website that was also available in Italian language.
The CONSOB considered that their activity constituted an offer to the public in the meaning of the legislative decree n. 58 of 24 February 1998 ("TUF"). The criteria of TUF are the following:
A financial instrument or an investment of financial nature. The latter is constituted when there is use of capital with an expectation of financial return and the assumption of a risk directly connected with the use of capital;
The existence of a communication aimed at making purchases or subscriptions;
The fact that this communication is addressed to the public residing in Italy.
As a consequence, Crypt Trade should have published a prospectus and notified CONSOB. Considering a prior 90 days suspension with the resolution no. 20110 of September 13, 2017 and the absence of counter-argumentation, the CONSOB prohibited activities of Crypt Trade in Italy, under the ground that - due to the specific conditions of the offer - it should have been qualified as public offer of "financial products", requiring the prior publication of a prospectus.