From 30 December 2024, Regulation (EU) 2023/1114 on markets of crypto-assets (‘MiCAR’), which introduced in the Union a harmonised framework for the issuance, offer to the public and provision of services relating to crypto-assets that do not qualify as financial instruments or other products already regulated by EU legislative acts, is directly applicable (some provisions were already applicable as of last 30 June).
MiCAR regulates the issuance, offer to public and provision of services related to the following types of crypto-assets (Art. 3.1)
(i)asset-referenced tokens (‘ART’), that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies;
(ii) electronic money tokens (e-money tokens - ‘EMT’), that purports to maintain a stable value by referencing the value of one official currency;
(iii) crypto-assets other than ARTs and EMTs (‘other than’ crypto-assets), which also includes ‘utility tokens’, and fractions of NFTs, e.g. those issued in a large series or collection.
On this last category consisting of NFTs (non-fungible tokens), Article 2 of MiCAR specifies its non-application to crypto assets that are unique and non-fungible with other crypto assets. At the same time, bearing in mind certain clarifications contained in the MiCAR Whereas, as well as guidelines and guidance, it can be argued that uniqueness and fungibility must also be considered on the basis of the underlying of the token, which, if fractional and represented by a broad indistinct set of NFTs, could fall within the scope of MiCAR, in particular in the third category of other-than crypto-assets. This leads to the obligation for issuers to carry out a number of activities, including the publication of the white paper and its notification to the competent authorities (although no authorisation is required).
Compliance with MiCAR was supplemented, in Italy, by Legislative Decree no. 129 of 5 September 2024, which, among other things, regulated the transitional regime by establishing that entities prividing activities relating to the use of virtual currency and digital wallet services (VASPs - virtual assets service providers) duly registered, as of 27 December 2024, in the special section of the register kept by the OAM who apply for authorisation pursuant to Article 62 MiCAR, by 30 June 2025, may continue to provide services relating to the use of virtual currencies or digital wallet services until 30 December 2025 or until an authorisation pursuant to Article 63 of MiCAR (which governs the authorisation regime for CASPs - crypto assets service providers) is granted or denied, whichever is earlier. Authorised VASPs will then assume the status of CASPs.
In addition, the amending Legislative Decree 129/2024 outlined the powers and functions of Consob and the Bank of Italy as the competent authorities for Italy.
In particular, the implementing regulations attribute to the Bank of Italy powers of prudential supervision and crisis management, with reference to issuers of ART and EMT and to CASPs, and for combating money laundering and terrorist financing, with reference to CASPs and to banking and financial intermediaries acting as issuers of ART and EMTs; powers of product intervention on EMTs as well as - when necessary to ensure the stability of the financial system - on ART and other-than-ART crypto assets. Consob, on the other hand, is vested with supervisory competences in the areas of transparency, fairness of conduct, orderly conduct of trading and protection of crypto-assets/clients, with reference to issuers of ART and CASP, and in the area of public offerings and admission to trading of crypto other-than; powers of product intervention on ARTs and crypto other-than, when necessary to ensure investor protection, orderly functioning and integrity of cryptocurrency markets; powers to prevent and prohibit market abuse relating to crypto assets. This is without prejudice to the Bank of Italy's exclusive competences relating to the supervision function over the payments system, which the authority exercises both as a component of the Eurosystem and at the national level pursuant to Article 146 of the Consolidated Banking Act.
In any case, from 30 December 2024, operators are required to comply fully with the MiCAR.
In order to promote speed and efficiency of the processes, with its communication no. 1/24 of 12 September 2024, Consob has, among other things, invited VASPs to plan in good time and sufficiently in advance their compliance with MiCAR, and operators intending to start providing services for crypto-activities to adopt, in good time, organisational-procedural safeguards, including internal control safeguards, and has also invited those interested in submitting requests for authorisations/notifications to initiate informal and preliminary discussions to receive clarifications on the information and documentary elements to be attached to the requests.
With the Note of 30 December 2024, therefore, Consob published a table providing the contact details of Consob in relation to the sending of the requests, notifications and communications provided for by the MiCAR, specifying, on the subject of whistleblowing complaints and reports, that Consob is not competent to deal with complaints relating to facts prior to the entry into application of the MiCAR and not otherwise attributable to its supervisory functions.
Budget Law - News on Crypto-Activities (Paragraphs 24-29)
With the full implementation of MiCAR, the new year also introduces significant changes concerning the taxation of crypto-assets. The Budget Law (Law No. 207 of December 30, 2024) modifies the tax regime for capital gains and other incomes derived from the redemption, sale, exchange, or holding of crypto-assets, regardless of their denomination.
This adjustment, although more favorable than originally proposed during the approval process, entails a shift in the tax rate. Indeed, starting January 1, 2026, these incomes will be subject to a flat tax of 33%, up from the current 26%. Additionally, the existing exemption threshold of EUR 2,000 will be eliminated.
Furthermore, the option to establish the tax basis of crypto-assets held as of January 1, 2025, by paying a flat tax of 18% on their market value, as defined under Article 9 of the TUIR, has been reintroduced. This tax must be paid by November 30, 2025, either in a single payment or in three equal annual installments, with a 3% annual interest rate applied to the deferred payments.
This established cost basis will be effective for calculating capital gains but does not permit the recognition of capital losses that may be claimed under paragraph 9-bis of Article 68 of the Italian Tax Code No. 917/1986
