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Italy

CMS Expert Guide to Crypto Regulation in Italy

Table of contents
  1.  How is crypto regulated?
  2. What are the steps taken by the regulator to adopt MiCAR?
  3.  Are the following activities regulated or unregulated in your jurisdiction? ― Direct sales of tokens by issuers Exchange (buy/sell) ― Custody (hold) ― Borrowing/lending ― Yield/staking services—Staking on proof of stake consensus mechanisms (please indicate if NFTs are treated differently from fungible cryptoassets for each activity)
  4. Can offshore business provide services to local customers on either active solicitation or reverse solicitation basis? 
  5. How long would establishing a cryptoasset business/obtaining a license in your jurisdiction take?
  6. What would be the approximate overall cost of obtaining a licence?
  7. What is the probability (%) of success in obtaining a licence?
  8. What other limitations are there in your jurisdiction when looking to set up a cryptoasset business? E.g., Compliance requirements and physical presence
Italy

Disclaimer: This chapter was last updated on 13th June 2024 and does not reflect any subsequent developments. The information provided is intended for general informational purposes and should not be construed as legal advice.

1. How is crypto regulated?

AML RegulationAny other regulation

 

The relevant legislation is the legislative decree 231/2007 (AML Decree), according to which providers of the following services must enroll in a registry held by OAM (Organismo Agenti e Mediatori): 

  • Direct sales of tokens by issuers
  • Exchange (buy/sell)
  • Custody (hold)

 

No other regulation at the moment (until implementation of MiCAR)

2. What are the steps taken by the regulator to adopt MiCAR?

Currently, a draft of legislative decree for the implementation of MiCAR has been published for public consultation and to allow stakeholders to send their observations.

The consultation process is over and the final draft shall be available in the next months.

Please also see our CMS Legal experts on Markets in Crypto-Assets (MiCA) regulation (cms.law)

3. Are the following activities regulated or unregulated in your jurisdiction? ― Direct sales of tokens by issuers Exchange (buy/sell) ― Custody (hold) ― Borrowing/lending ― Yield/staking services—Staking on proof of stake consensus mechanisms (please indicate if NFTs are treated differently from fungible cryptoassets for each activity)

AML RegulationAny other regulation

 

See above on registration with OAM duties

 

Direct sales of tokens by issuers: unregulated, unless they qualify as financial instruments

Exchange (buy/sell): unregulated

Custody (hold): unregulated

Borrowing/lending: generally unregulated (unless  specific features make such activity fall within the ordinary borrowing/lending activities)

Yield/staking services: unregulated (unless qualified as financial services under certain circumstances)

Staking on proof of stake consensus mechanisms: unregulated

NFTs are not regulated

4. Can offshore business provide services to local customers on either active solicitation or reverse solicitation basis? 

AML RegulationAny other regulation

 

Any provider of crypto related services must create a branch (if EU) or subsidiary if non EU) in Italy to be registered at OAM

 

Reverse solicitation: YES

(before implementation of MiCAR and pending ESMA Guidelines on reverse solicitation of crypto assets)

Active solicitation: YES

but they have to create a branch or subsidiary in Italy for AML purposes

5. How long would establishing a cryptoasset business/obtaining a license in your jurisdiction take?

AML RegulationAny other regulation

 

Obtaining registration at OAM is very simple and takes normally 15 days

Cross-border operations in Italy is permitted for CASPs, which however must set up an Italian company or a branch for EU companies, and then enroll at the special section of OAM register.

 

No other license requirement until implementation of MiCAR

6. What would be the approximate overall cost of obtaining a licence?

AML RegulationAny other regulation

 

The cost for registration at the special section of the OAM register is of eur 8,300, plus the costs and fees needed for setting up the branch in Italy, amounting to circa eur 3,000 and 6,000 respectively.

 

No other license requirement until implementation of MiCAR

7. What is the probability (%) of success in obtaining a licence?

AML RegulationAny other regulation
Almost 100%N/A

8. What other limitations are there in your jurisdiction when looking to set up a cryptoasset business? E.g., Compliance requirements and physical presence

AML RegulationAny other regulation

 

Even though a branch or a subsidiary must be established in Italy and enrolled with OAM the services can be provided from the country of origin.

 

Tax issues may arise on allocation of incomes.

 

Foreign CASPs (through their Italian branch or subsidiary) shall communicate to OAM on a quarterly basis all data related to customers’ transactions.

 

No other requirements at this stage.

Authors

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Portrait ofPaolo Bonolis
Paolo Bonolis
Partner
Rome
Portrait ofGianfabio Florio
Gianfabio Florio
Counsel
Rome