ITALY Law and Practice Contributed by: Alessandro Pistochini, Luca Moglia, Giovanni Bellissimo and Giulia Barattini, Pistochini Avvocati Studio Legale
3.16 Crypto-Assets and Digital Currency Crimes Crypto-assets were comprehensively regulated for the first time with Legislative Decree No 129 of 5 Septem - ber 2024, implementing the EU Regulation on Markets in Crypto-Assets (MiCAR, Regulation (EU) 2023/1114). The Decree introduced one specific criminal offence (Article 30) and several administrative offences. Before this, the Italian Supreme Court of Cassation had already classified certain crypto-assets (particu - larly cryptocurrencies) as “financial products” (eg, shares or bonds), thus subjecting them to the Con - solidated Law on Finance and related offences. Under Legislative Decree No 129/2024, the unau - thorised marketing of crypto-assets may constitute an offence under Article 30, which criminalises anyone who, without the required licence: • offers to the public asset-referenced tokens or applies for their admission to trading; • provides crypto-asset services under the Regula - tion; • issues e-money tokens; or • offers to the public e-money tokens or applies for their admission to trading. The penalty is imprisonment from six months to four years and a fine of up to EUR10,329.
• a technical defence (eg, demonstrating that a cer - tain threshold of pollution required to establish an environmental crime was not reached); • a factual defence (eg, in tax crime proceedings, proving that invoices deemed false by the prosecu - tor’s office are in fact genuine); or • a legal defence (eg, arguing that the defendant did not commit the offence of unauthorised finan - cial activity because his consultancy activity did not meet the requirement of being directed to the “public”). The “subjective” defence, instead, may consist in attributing responsibility for the offence to some - one else (eg, the CEO of a large company attribut - ing responsibility for a serious workplace accident to the plant manager of the relevant production site), or in excluding any personal involvement in the com - mission of the offence (eg, a non-executive director defending himself by proving his absence from the board meeting in which the approval of a false finan - cial statement was resolved). Compliance Programmes Under Italian law (Legislative Decree No 231/2001), companies may avoid corporate liability for certain white-collar offences if they can demonstrate that, prior to the offence, they had adopted and effective - ly implemented an organisational and management model (“ Modello 231 ”) designed to prevent that type of misconduct. This defence applies only to entities and only for offences covered by the Decree (eg, cor - ruption, corporate crimes, market abuse, money laun - dering, tax offences). For individuals, compliance pro - grammes have no exonerating effect, serving at most as evidence of the absence of negligence or intent. 4.2 De Minimis The legal provision that best embodies the principle de minimis non curat lex is Article 131-bis of the ICC (“Exclusion of punishability for particular triviality of the act”). This provision indicates that for minor offences, which are punishable by a custodial sentence of no more than two years, punishability is excluded when the harm caused is particularly trivial and the conduct is not habitual. The triviality of the harm is assessed with reference to the manner in which the offence was committed, the insignificance of the harm or danger
4. Pleas and Defences 4.1 White-Collar Defences Common Defences
The most common defence strategies can be divided into two categories: on the one hand, the “objective” defence, which seeks to have the court recognise that no offence was committed; and, on the other hand, the “subjective” defence, which aims to persuade the court that, even if an offence was committed, liability should not fall on the defendant. The “objective” defence can, in turn, take different forms:
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