В настоящей публикации рассматривается статус виртуальных валют в Италии. В частности, виртуальная валюта рассматривается как средство платежа и как инвестиционный инструмент (ценная бумага). Особое внимание уделяется требованиям лицензирования (регистрации) провайдеров услуг, связанных с виртуальной валютой. Авторы приходят к выводу, что правовой статус виртуальной валюты в Италии – новая и неизведанная сфера правового регулирования, причем особенно много проблем ставит урегулирование режима использования виртуальной валюты в качестве инвестиционного инструмента. Возможны неадекватные ответы на вызовы, которые возникают в связи с борьбой с отмыванием грязных денег и соблюдением новелл права Европейского Союза в сфере конфиденциальности. Географический характер и природа процессов создания, распределения и использования виртуальных валют делают существующую правовую парадигму недостаточной для решения всех встающих вопросов.
Introduction
Virtual currencies as a means of payment
Virtual currencies for investment purposes
Licensing requirements
Securities law standpoint
Main implications
Introduction
What are virtual currencies from an Italian legal standpoint? The Bank of Italy has twice stepped into this area, first in January 2015(1) and again in March 2018,(2) adopting a similar approach to the US Commodity Futures Trading Commission. In 2017 Parliament amended Legislative Decree 231/2007 through Legislative Decree 90/2017 (as amended, the Anti-money Laundering Law).(3)
The legislature has defined ‘virtual currency’ as follows:
A digital representation of value that is neither issued by a central bank or a public authority, nor attached to a legally established fiat currency which can be used as a means of exchange for the purchase of goods and services and transferred, stored and traded electronically.(4)
In 2015 the Bank of Italy used similar wording in its definition of virtual currencies as “a digital representation of value that functions as a medium of exchange or for investment purposes, a unit of account, and/or a store of value”. The Bank of Italy explained that the term ‘virtual currency’ is used exclusively to identify a social phenomenon known under such name. Although in some cases virtual currencies are convertible with or into currencies that are legal tender (eg, euros and US dollars), virtual currencies do not have legal tender status.(5)
The fact that virtual currencies have no legal tender status means that their acceptance by creditors to satisfy monetary obligations owed to them is not required by law.(6) In other words, debtors are entitled to use virtual currencies to satisfy monetary obligations only to the extent that such means of payment is expressly provided for in the contract by mutual consent of the parties or if the creditor accepts it.
Although virtual currencies are not considered legal tender in Italy, they can still qualify as a means of payment. This is confirmed both by the Bank of Italy and statutory provisions.(7)
Virtual currencies as a means of payment
Virtual currencies are already used and accepted in the Italian market for payment purposes in connection with many daily activities. For example, the cooperative that manages one of the largest taxi services in Rome accepts bitcoin payments. The cooperative’s drivers:
use the same point-of-sale devices generally used for credit card transactions;
charge for service in euros (for the amount that appears on the meter); and
receive payment in euros, but the clients pay through their bitcoin wallet.
Other examples include:
a pharmacy in Trieste;
17 small towns in the Trento area that accept bitcoin to pay for school cafeteria services;
various shops in Rovereto; and
a construction company that sells apartments in Rome via bitcoin payments.
Virtual currencies for investment purposes
Several projects that use virtual currencies as part of investment platforms have been promoted by Italian entrepreneurs (eg, Friendz Coin, AidCoin, Eidoo and Xriba). It appears that none of these projects was developed in Italy or by an Italian company applying Italian law. Xriba is registered in the Isle of Man and the other projects in Switzerland.
Licensing requirements
Providers of virtual currency services in Italy (ie, any natural or legal person that provides professional services to third parties to use, exchange or store virtual currencies and convert virtual currencies from or into currencies with legal tender status) are subject to registration in a special section of the currency exchange register.(8)
In order to populate the special section of the exchange register efficiently, the Consumer Credit Law mandates a Ministry of Economy and Finance decree that sets out the procedures and timing in which virtual service providers must communicate their operations in Italy to the ministry. Communication is an essential condition for the legal activity of such providers of virtual currency services. The decree establishes forms of cooperation between the Ministry of Economy and Finance and the police, which may lead to a ban for virtual service providers that fail to comply with the notification obligation.
Securities law standpoint
Virtual currencies used for investment purposes appear to fall within the scope of the broad definition of ‘investment products’ pursuant to the Securities Act (Legislative Decree 58/1998), as subsequently amended. Investment products in Italy include financial instruments (ie, securities) as well as “any other form of financial investment”.(9)
Investment products are subject to the same rules and restrictions applicable to the offer of financial instruments or securities to the public in Italy. In particular, unless an exemption is available, a prospectus authorised by CONSOB (the securities regulator) must be published.(10)
The main exemptions available, pursuant to Article 34ter of CONSOB’s Regulation 11971/1999, as subsequently amended, are:
the 150 Italian resident investors exemption (no prospectus authorised by CONSOB is required if the investment products are sold to less than 150 investors in Italy); or
the qualified investors exemption (no prospectus authorised by CONSOB is required if the investment products are sold exclusively to qualified investors in Italy).
Investment products are also subject to other securities law regulations and restrictions regarding the marketing and sale of financial products outside the usual business premises pursuant to the Securities Act.(11)
Main implications
Virtual currencies represent uncharted territory in Italy for various reasons. The current rules and restrictions will likely need structural adjustments to make them work in this new environment. The fact that the issuer of virtual currencies for investment purposes is in most cases based in a foreign country (often outside the European Union) could make the scope of current exemptions under the Securities Act too broad (especially considering that such offers would be launched in parallel in many different countries and markets).
The traditional approach to anti-money laundering and data protection could risk providing inadequate responses to the virtual currency challenge. For example, the blockchain structure, which represents the backbone on which virtual currencies are exchanged appears to be at odds with some of the recently introduced principles of EU privacy law. In particular, the right to deletion or rectification of data conflicts with the fragmentation of data across hundreds or thousands of computers, which is one of the key elements of blockchain.
The geographical nature and structure for the creation, distribution and use of virtual currencies make the current legal framework inadequate to face all the new challenges and will require several structural adjustments. The use of regulatory sandboxes could prove to be the most efficient way to test new ways to regulate this phenomenon and move forward from a regulatory standpoint.
Endnotes
(1) Bank of Italy, Avvertenza sull’utilizzo delle cosidedette valute virtuali, published on 30 January 2015.
(2) Bank of Italy, Avvertenze per in consumatori sui rischi delle valute virtuali da parte delle Autorità Europee, published on 19 March 2018.
(3) Legislative Decree 90 of 25 May 2017, implementing the EU Fourth Anti-money Laundering Directive (2015/849/EC), amending EU OTC Derivatives, Central Counterparties and Trade Repositories Regulation (648/2012) and repealing EU Third Anti-money Laundering Directive (2005/60/EC).
(4) Article 1(2)(lett qq) of the Anti-money Laundering Law.
(5) However, in tax ruling 72/E/2016, the Tax Authority required that virtual currencies be reported in the same section (Section RW of the Italian tax return) for tax purposes and following the same approach used for foreign currencies.
(6) Pursuant to Article 1277 of the Civil Code “monetary obligations are to be satisfied by means of money having legal tender in Italy at the time of payment”.
(7) Article 17bis(1) of the Consumer Credit Law (Legislative Decree 141 of 13 August 2010), implementing in EU Consumer Credit Agreement Directive (2008/48/EC) in Italy, repealing EU Consumer Credit Directive (87/102/EEC).
(8) Pursuant to Article 17bis(8bis) of the Consumer Credit Law.
(9) Pursuant to Article 1(1, lett u) of the Securities Act.
(10) Pursuant to Article 94 of the Securities Act.
(11) On such grounds, with resolution 19968 of 20 April 2017, CONSOB prohibited any marketing activity through www.coinspace1.com in relation to an offer to the public by Coinspace Ltd of mining packages for virtual currencies.
Авторы: Andrea Giannelli, Marzio Ciani
Источник: https://www.internationallawoffice.com/Newsletters/Banking/Italy/Legance-Avvocati-Associati/Virtual-currencies-in-Italy-an-overview?utm_source=ILO+Newsletter&utm_medium=email&utm_content=Newsletter+2018-07-27&utm_campaign=Banking+Newsletter