ITALY Law and Practice Contributed by: Francesco Paolo Patti and Marta Vittoria Colombo, Studio Patti
opaque structures – particularly those involving trusts, nominees, or multi-layered holding vehicles, which are viewed with suspicion in civil law jurisdictions lacking a native trust concept. Applicants are well-advised to maintain simple, linear corporate structures with clear- ly identifiable natural persons as beneficial owners. Any deviation from this model invites extended scru- tiny and may jeopardise the authorisation process. 3.4 Passporting Under MiCAR, authorisations obtained in Italy as a CASP benefit from a full EU passporting regime, which significantly facilitates cross-border operations within the European Union. Once authorised by Consob, a CASP may provide its services in other member states either on a freedom to provide services basis or through the establishment of a branch. The authorised CASP must notify its home authority (in Italy, Consob) of its intention to operate in another member state, specifying the services to be provided and, where relevant, the organisational arrangements of any branch. Consob then transmits this informa- tion to the competent authorities of the host member state. Once this communication is completed, the CASP may begin operating on a cross-border basis. No additional licensing requirements are imposed by host member states, although local authorities retain limited powers, particularly in relation to marketing practices and consumer protection rules applicable at national level. This passporting mechanism represents one of the key innovations of MiCAR, as it replaces the previ- ously fragmented national regimes with a single EU- wide authorisation, thereby enabling scalable busi- ness models and reducing regulatory barriers to entry across the internal market.
CASPs may provide services into Italy, benefitting from the passporting regime. Entities outside the EU must obtain authorisation within the EU framework. Where crypto-assets are offered to the public, Title II MiCAR requirements apply, including white paper preparation and notification. MiCAR provides for limited exemptions, including the so-called reverse solicitation – that is, the provision of services at the exclusive initiative of a client. How- ever, consistent with the broader EU approach, the exemption is interpreted restrictively. Any form of prior marketing, solicitation or targeting of Italian clients is likely to exclude reliance on this exemption. In prac- tice, it cannot be used as a substitute for authorisa- tion where there is a structured or ongoing presence in the market. Marketing of crypto-assets and related services in Italy is subject to both general principles and specific MiCAR provisions. Across the board, communications must be fair, clear and not misleading, and must be consistent with the information contained in the rel- evant white paper where applicable. Title II MiCAR introduces specific rules for market- ing communications in the context of public offerings. Such communications must be clearly identifiable as marketing, must not contradict or diminish the infor- mation provided in the white paper, and must present risks in a balanced and prominent manner. The overall objective is to prevent promotional material from cre- ating unrealistic expectations or obscuring the nature of the investment. Similarly, CASPs are subject to conduct of business obligations requiring transparency in client communi- cations, including disclosure of risks, costs and key characteristics of the crypto-assets involved. Particu- lar attention is given by Consob to digital channels, including social media and online platforms, where misleading or aggressive marketing practices are more likely to occur. Also, the governance and organi- sation of marketing activities are scrutinised in detail within the CASPs’ authorisation procedures.
4. Cross-Border Services 4.1 Marketing
Cross-border provision of crypto-asset services into Italy is governed by MiCAR. Only EU-authorised
347 CHAMBERS.COM
Powered by FlippingBook