ITALY Law and Practice Contributed by: Francesco Paolo Patti and Marta Vittoria Colombo, Studio Patti
While EMTs are clearly positioned within the broad- er payments ecosystem, the MiCAR regime is more comprehensive and stringent in certain respects than the traditional e-money framework. In particular, the introduction of detailed disclosure obligations and the integration of market conduct rules reflect the dual nature of EMTs as both payment instruments and crypto-assets. At the same time, the reliance on existing catego- ries of regulated entities ensures continuity with the pre-existing regulatory system, preserving the role of established financial institutions in the issuance of EMTs are subject to detailed and prescriptive rules on the composition and safeguarding of backing assets, aimed at ensuring full stability and immediate redeem- ability. EMTs must be fully backed (100%) and holders must benefit from a right of redemption at par value at any time. Article 54 MiCAR introduces a clear quantitative requirement: payment instruments. 6.2.3 Backing Assets • at least 30% of the funds must be held at all times as deposits in separate accounts with credit insti- tutions; and • the remaining portion must be invested in secure, low-risk and highly liquid financial instruments, with minimal market, credit and concentration risk, and denominated in the same official currency refer- enced by the token. This creates a two-tier reserve structure, combining immediate liquidity (cash deposits) with conservative liquid investments. All backing assets must be: • segregated from the issuer’s own assets; • protected against claims by creditors; and • held within the regulated financial system, typically with authorised credit institutions.
These requirements are aligned with those applicable to electronic money institutions, but reinforced under MiCAR. Prohibition on Interest MiCAR expressly prohibits the payment of interest or any form of remuneration linked to the holding of EMTs. The rationale is to ensure that EMTs function strictly as means of payment, and not as investment Under MiCA, EMTs and ARTs may be designated as “significant” where, on the basis of specific regulatory criteria set out in the Regulation, they are considered to be of particular importance due to their scale, mar- ket penetration, cross-border relevance, or potential impact on financial stability. The assessment is con- ducted by the European Banking Authority (EBA) in co-operation with ESMA and the relevant national competent authorities, including the Bank of Italy. Where a token is designated as significant, the issuer becomes subject to enhanced supervision led by the EBA, while the Italian authorities continue to exer- cise their supervisory powers within their respective areas of competence. Significant EMTs and ARTs are required to comply with more stringent governance, risk management, reporting, and reserve management obligations, reflecting the greater potential impact of such tokens on financial stability and market integrity. or deposit-like instruments. 6.2.4 Special Considerations 7. Tokenisation and Real-World Assets 7.1 Treatment In Italy, the regulation of tokenised assets and real- world assets (RWAs) follows a substance-over-form approach, whereby the legal treatment depends on the nature of the underlying asset and the rights attached to the token, rather than on the use of block- chain technology itself. As a general principle, where tokenisation results in instruments that qualify as financial instruments, the full body of traditional capital markets regulation applies (including MiFID II), irrespective of the techno- logical layer. Conversely, where the token does not fall
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