ITALY Law and Practice Contributed by: Francesco Paolo Patti and Marta Vittoria Colombo, Studio Patti
Conversely, crypto-assets that do not qualify as finan- cial instruments are regulated under MiCAR. Within this perimeter, MiCAR introduces a further classifica- tion into three main categories: • asset-referenced tokens (ARTs), which aim to main- tain a stable value by referencing multiple assets, such as currencies, commodities or other crypto- assets; • electronic money tokens (EMTs), which are designed to maintain a stable value by referencing a single official currency and are therefore concep- tually aligned with electronic money; and • other crypto-assets, including utility tokens, which provide access to a good or service supplied by the issuer and do not have a stabilisation function. Crypto-assets in Italy are therefore subject to a dual regulatory framework. Financial instruments are gov- erned by existing legislation implementing MiFID II and related EU rules, while non-financial crypto-assets are regulated under MiCAR. This layered approach should ensure that economically equivalent activities are treated consistently, irrespective of the underlying technology. MiCAR introduces a comprehensive and harmonised regime covering the issuance, public offering and admission to trading of crypto-assets, as well as the provision of crypto-asset services. It establishes dis- closure requirements (notably through the obligation to publish a white paper), organisational and pruden- tial rules for service providers, and conduct of busi- ness obligations designed to ensure investor protec- tion. The main regulated activities under Italian law, as shaped by MiCAR, fall into three broad categories. First, the offer to the public of crypto-assets requires the preparation and publication of a compliant white paper, unless specific exemptions apply. This docu- ment must provide clear and non-misleading informa- tion to potential investors. Second, the admission to trading of crypto-assets on a trading platform is subject to similar disclosure
requirements, with additional obligations imposed on the operator of the platform. Third, MiCAR regulates a broad range of crypto-asset services, including: • custody and administration of crypto-assets on behalf of clients; • operation of trading platforms; • exchange of crypto-assets for funds or other crypto-assets; • execution of orders and placement services; and • advice and portfolio management in relation to crypto-assets. These activities may only be carried out by authorised CASPs, subject to organisational, prudential and con- duct requirements. Italian law does not prohibit specific categories of crypto-assets as such, but prohibits unauthorised performance of regulated activities. In practice, there is heightened scrutiny of privacy coins, aligning with stricter EU AML measures expected to prohibit ser- vices related to anonymous crypto-assets. Certain restrictions arise indirectly through the regu- latory framework. For example, EMTs may only be issued by authorised credit institutions or electronic money institutions, effectively excluding unregulated entities from this segment. Similarly, misleading mar- keting practices or failure to provide adequate risk disclosures are prohibited under conduct of business rules. Over the next twelve months, the most significant development in Italy will not be the introduction of entirely new legislation, but rather the full operational implementation of MiCAR. This includes the granting of authorisations to CASPs, the application of regula- tory technical standards adopted at EU level, and the progressive consolidation of supervisory practices. In parallel, the Italian framework on DLT-based finan- cial instruments, adopted in connection with the EU DLT Pilot Regime, is expected to continue develop- ing, further clarifying the boundary between tokenised securities and crypto-assets.
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