ITALY Law and Practice Contributed by: Francesco Paolo Patti and Marta Vittoria Colombo, Studio Patti
Overall, the Italian regime can now be regarded as largely complete from a legislative standpoint. The focus is shifting from rule-making to supervisory practice and market consolidation, with increasing emphasis on compliance, governance and operational resilience. 2.3 Regulated Firms and Legal Wrappers Entities providing crypto-asset services in Italy are most commonly incorporated as a Società a Respon- sabilità Limitata (S.r.l.), a private limited liability com- pany. Less frequently, they adopt the form of a Società per Azioni (S.p.A.), broadly equivalent to a joint stock company. In some cases, firms are established as an S . r . l . Benefit , a limited liability company that, in addi- tion to pursuing profit, is legally required to pursue one or more public-benefit objectives, generating a positive social and/or environmental impact alongside its business activities. Investment funds with exposure to crypto-assets remain subject to the regulatory framework applica- ble to their specific legal form and investment strat- egy (including, where relevant, the AIFMD and UCITS regimes). Where they intend to provide crypto-asset services falling within the scope of MiCA, they must obtain the relevant authorisations or otherwise comply with the conditions set out in MiCA and the applicable Italian implementing measures. 2.4 Token Issuance Italy provides a viable legal framework for crypto- asset issuances, including ICOs, now governed by Title II of MiCAR, which allows the offering of crypto- assets to the public for fundraising purposes. The regime applies where the token does not qualify as a financial instrument under MiFID II; otherwise, the traditional securities law framework applies. A key feature of MiCAR is its notification-based approach. Issuers are not required to obtain prior authorisation, but must prepare and notify a cryp- to-asset white paper to the competent authority. In Italy, Consob is responsible for receiving such noti- fications. Despite the absence of a formal approval process, the supervisory approach remains rigorous in practice. Consob generally encourages informal pre-notification discussions, particularly to assess the
legal classification of the token and reduce regulatory uncertainty. The white paper is the central disclosure document and must contain clear, fair and non-misleading infor- mation. It includes details on the issuer, the charac- teristics and rights attached to the crypto-asset, the terms of the offering, the use of proceeds, and the associated risks. It must also describe the underlying technology, including the consensus mechanism, and any relevant environmental impacts. Responsibility for its content lies entirely with the issuer. Although the framework is relatively streamlined from a procedural perspective, market uptake in Italy has been limited. To date, only a small number of white papers have been notified to Consob – approximately six – of which only one relates to an offering con- ducted by an Italian issuer. 2.5 Market Abuse Italy now has a specific framework addressing mar- ket abuse in the crypto-asset space, primarily derived from MiCAR, which introduces a dedicated regime largely inspired by the principles and structure of the Market Abuse Regulation (MAR) applicable to tradi- tional financial instruments. Under MiCAR, a set of rules applies to crypto-assets admitted to trading on a trading platform or for which a request for admission has been made. The regula- tion prohibits conduct that closely mirrors traditional market abuse categories, namely: • insider dealing, consisting in the use of inside infor- mation to acquire or dispose of crypto-assets, or to cancel or amend orders; • unlawful disclosure of inside information, where such information is disclosed to third parties out- side the normal exercise of a profession or duties; and • market manipulation, including practices that give false or misleading signals as to the supply, demand or price of crypto-assets, or that secure prices at artificial levels. In this context, “inside information” is defined in a manner broadly consistent with MAR, referring to
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