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News concerning crypto assets: the Italian Ministry of Economy and Finance introduces the mandatory enrolment within the register held by OAM

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The Decree of the Ministry of Economy and Finance of 13th January 2022 (the “MEF Decree”), published on the Italian Official Gazette of 17th February 2022, provides for the modalities and the deadlines, applicable to the providers of services related to the use of virtual currencies and the providers of digital wallet services (the “Virtual Assets Services Providers”), to communicate their operativity in Italy.
 
The MEF Decree recalls the definitions of: (i) providers of services related to the use of virtual currencies, (ii) providers of digital wallet services, and (iii) virtual currency, already included under article 1, paragraph 2, letters ff), ff-bis) and qq) of the Italian Legislative Decree 21st November 2007, no. 231.

In particular:
  1. the “providers of services related to the use of virtual currencies” are identified as “any individual or entity other than an individual that provide to third parties, on a professional basis, also on an online basis, services functional to the use, exchange and storage of virtual currency and to their conversion from or in fiat currencies or in digital representation of value, including the ones convertible in other virtual currencies as well as the services of issuance, offer, transfer and compensation and any other service functional to the acquisition, negotiation or brokerage in the context of the exchange of the same currencies”;
  2. the “digital wallet service providers” are identified as “any individual or entity other than an individual that provides to third parties, on a professional basis, also online, services of safeguarding of private cryptographic keys on behalf of their own clients, in order to hold, store or transfer virtual currencies”;
  3. the “virtual currency” is defined as “the digital representation of value, which is not issued nor guaranteed by a central bank or a public authority, not necessarily linked to a fiat currency, used as medium of exchange for the purchase of goods and services or for investment purposes and electronically transferred, archived and negotiated”.
The MEF Decree clarifies also that the services related to the use of virtual currencies include, inter alia, the execution, reception, transmission of orders related to virtual currencies on behalf of third parties, the virtual currencies placement services and the advisory services on virtual currencies.

Accordingly, the MEF Decree provides that the Virtual Currencies Providers, in order to operate in Italy, also online, must enrol within the special section of the register held by the “Organismo agenti e mediatori, pursuant to article 128-undicies of the Italian Legislative Decree of 1st September 1993, no. 385 and established pursuant to the Italian Legislative Decree of 13th August 2010, no. 141 (the “Decree 141”) (the “OAM”).

The OAM is the entity competent exclusively and autonomously for the management of the registers of the agents in financial activity and of the credit brokers. The OAM has protection functions towards the consumers and guarantees: (i) the professionality of the enrolled operators and the compliance with the law requirements when providing the services, (ii) the control and the supervision over the operators’ activity, (iii) the reliability of the public information related to the enrolled operators, (iv) the professional recognition of the enrolled operators and (v) the contribution to the regulation of the market. The OAM also has specific sanctioning powers which are exercisable towards the enrolled operators which are necessary for the execution of its institutional functions; the OAM is, in its turn, subject to the supervision of the Bank of Italy. With respect to the services related to virtual currencies regulated by the MEF Decree, it is provided that the OAM, inter alia, must verify the correctness and completeness of the communications, to the extent of arranging or denying the enrolment to the applicants in the special section of the registered dedicated to the Virtual Currencies Providers, and also must take care of the clarity, the completeness and the accessibility to the public of the information contained in such section.

The enrolment within the special section of the register is subject to the compliance with the requirements set forth by article 17-bis, paragraph 2 of the Decree 141; in particular:
  1. for the individuals: Italian nationality, EU country nationality (other than Italian) or a third-country nationality in accordance with to the discipline set forth by article 2 of the “Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero” (Italian Legislative Decree no. 286/1998), and domicile in Italy;
  2. for the entities other than individuals: having a registered and administrative office or, for EU entities, a permanent establishment in Italy.
In order to be enrolled, the Virtual Asset Services Providers must serve, by electronic means, to the OAM a communication which shall include information related to (i) the identification of the applicant, (ii) the services to be provided and (iii) the modalities under which the services will be provided.

The special section of the register will be made available within 90 days from the entry into force of the MEF Decree.

The Virtual Asset Services Providers which, at the date on which the special section of the register will be made available, will be already providing such services in Italy, should serve the communication to the OAM within 60 days from such date; in this case, the operators will be able to continue to perform such services legitimately in Italy until the communication of enrolment, or the service of any support documentation which might be further requested, by the OAM.

In case the communication to the OAM is not served at all, or is not served within the above-mentioned deadlines, the provision in Italy of the said services by the Virtual Asset Services Providers will be considered as “unlawful” (abusiva).

Pursuant to the Decree 141, the unlawful (abusiva) provision of the services by the Virtual Asset Services Providers is punished with an administrative fine starting from Euro 2,065 to Euro 10,329.

The Virtual Asset Services Providers, pursuant to the MEF Decree, must serve to the OAM by electronic means and on a quarterly basis – pursuant to the technical procedures that will be defined by the OAM through specific implementing acts after having heard the Italian Data Protection Authority (Garante per la protezione dei dati personali) – with respect to the activities performed in Italy, the personal data of the clients and the data related to the overall operativity with a breakdown for each client. With respect to the said data, Annex 1 to the MEF Decree provides with precise instructions and specifications related to the services of the communication concerning the forementioned information.

Furthermore, the Virtual Asset Services Providers, being subject to the currency exchange regulatory framework, will be required to pay a contribution associated to the costs to be sustained by the OAM in connection to the maintenance of the special section of the register.

Edited by:
Carmelo Raimondo
Andrea Turati
Raffaele Mollo

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