BITCOIN as an investment, says the Supreme Court
* by Fulvio Sarzana di S.Ippolito, lawyer, Sarzana and Associates law firm.
there Cassation intervenes again in the field of cryptocurrencies, considering that Bitcoin is a financial product when acquired for investment purposes.
In the opinion of the Supreme Forum, the virtual currency must in a judgment of 30 mediation (Art. 94 ff. TUF), which guarantee the protection of the investment through a uniform discipline of special law. In particular, the judges of Piazza Cavour ruled that:
“It seems appropriate to clarify some concepts relating to virtual currency that are contained in Directive 2018/843 / EU of May 30, 2018 (amendment of the so-called IV. Anti-Money Laundering Directive), is defined as “a representation of digital value that is not issued or guaranteed by a central bank or public body, is not necessarily linked to a legally specified currency, does not have the legal status of currency or money, but is accepted by natural and legal persons as a medium of exchange and can be electronically transmitted, stored and exchanged ”; the rationale for the law obviously seeks to regulate the relationship between virtual currency and current money, but without properly defining the phenomenon (by regulating the properties of the virtual currency in a “negative” way); Recital 10 of the Anti-Money Laundering Directive demonstrates the assumption that “while virtual currencies can often be used as a means of payment, they could also be used for other purposes and have a wider application, for example as a medium of exchange, investment, as a store of value or for use in Online casinos. The aim of this guideline is to cover all possible uses of virtual currencies. The definition of the Italian legislature can be found in Art. 1 of Legislative Decree 231/2007 of Legislative Decree of October 4, 2019, n. 125 when virtual currency is defined (letter qq) “the digital representation of value that is not issued by a central bank or authority or is guaranteed, is not necessarily linked to a legal tender currency and is used as a medium of exchange for the purchase of goods and services or for investment purposes and electronically transmitted, archived and negotiated ”; It is immediately evident that this definition expressly adds the investment purpose to that of the Community legislature. Regarding the topics that operate in the field of virtual currencies, it should be noted that by exchanger we mean the topic that manages the exchange platforms, i.e. with exchange the technological platform that enables you to trade this financial product, the function of which is therefore to buy and sell cryptocurrencies and generate profits: with the IV. and V EU money laundering directive, each implemented with the legislative decree n . 90/2017 and Legislative Decree No. 125/2019 established special obligations towards the exchanger (Bitcoin money changer et similar, defined as any natural or legal person who professionally, including online, third party services for the use, exchange, storage of virtual currencies and their conversion from or into currencies with legal tender or in digital representations of value, including those in others virtual currencies are convertible, as well as issuing, offering, transfer and clearing services and all other services that are used for the acquisition, negotiation or brokering when exchanging the same currencies, Art. 1, Paragraph 2, lett. ff, Legislative Decree n . 231/2007) and the wallet provider (manager of virtual portfolios, defined as any natural or legal person who, on behalf of their customers, provides professional services, including online, to protect private cryptographic keys to third parties in order to hold virtual currencies and to transfer, Art. 1 para. 2 lit. ff bis)), both in the category “other non-fina ncial actors ”. However, the court has ruled (paragraph 2, sentence no.26807 of 17.09.2020, De Rosa, Rv. 279590-01) that if the sale of Bitcoin is advertised as a genuine investment proposal, an activity will be subject to that described in the articles 91 ff. TUF (“La CONSOB exercises the powers provided in this part with regard to investor protection as well as the efficiency and transparency of the corporate control market and the capital market ”), the failure of which constitutes the offense according to Art. 166 Paragraph 1 Letter c) TUF (which punishes everyone who offers outside of the office or advertises or places financial products or instruments or investment services or activities through distance communication techniques); Bitcoin can therefore currently be viewed as a financial product if it is bought for investment purposes: The virtual currency, if it takes on the function, i.e. the specific cause, of an investment instrument and thus a financial product, must be regulated with the rules on financial intermediation (Art. 94 ff. TUF), which guarantee the protection of the investment through a uniform discipline of special law.
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