Decree of the Ministry of Economy and Finance (Ministero dell’ Economia e delle Finanze) concerning the modalities and timing by which virtual currency service providers and digital wallet service providers are required to communicate their operations in the national territory
Prepared by Fabrizio Cascinelli and Alberto Borri
Regulatory Framework
On 17 February 2022, the Decree of the Ministry of Economy and Finance dated 13 January 2022 concerning the procedures and timelines by which virtual currency service providers and digital wallet service providers are required to disclose their operations in Italy (“Decree“) was published in the Official Gazette (Gazzetta Ufficiale). The Decree applies the anti-money laundering provisions introduced with article 17-bis of Legislative Decree no. 141 of 13 August 2010 and article 8 paragraph 1 and article 8-bis of Legislative Decree no. 90 of 25 May 2017.
The Decree introduces further obligations in addition to those already provided for in Legislative Decree 231/2007 (“Anti-Money Laundering Legislation“), that already applies to virtual currency service providers and digital wallet service providers already since 2017 with the introduction in Italy of Legislative Decree no. 90 of 2017.
The Decree
The Decree applies the definitions under the Anti-Money Laundering Legislation, of virtual currency service providers and digital wallet service providers, conforming them with the aforementioned regulations.
In particular, virtual currency service providers are defined as follow: “any natural person or entity who provides third parties, on a professional basis, even on an online basis, with services relating to the use, exchange, storage of virtual currency and their conversion from or into legal tender or digital representations of value, including those convertible into other virtual currencies, as well as issuing, offering, transferring and clearing services and any other service relating to the acquisition, negotiation or intermediation in the exchange of such currencies”.
Digital wallet service providers are instead defined as: “any natural person or entity who provides to third parties, on a professional basis, even on an online basis, services for the safeguarding of private cryptographic keys on behalf of their customers, in order to hold, store and transfer virtual currencies”.
The provisions of the Decree apply to any natural person or entity who provides third parties on a professional basis, even on an online basis, with services relating to the use of virtual currency and digital wallets. The professional requirement is essential for the applicability of the Decree. In fact, those persons who carry out this activity not on a professional basis are exempted from the obligations of the Decree.
The Decree provides for the obligation for virtual currency service providers and digital wallet service providers to enroll in a special section of the register of currency exchange (“Register“) pursuant to article 17-bis, paragraph 1, of Legislative Decree n. 141 of 13 August 2010, established and managed by the Organismo per la gestione degli Elenchi degli Agenti in attività finanziaria e dei Mediatori creditizi (“OAM“).
In accordance with article 3 of the Decree, the enrollment in the special section of the Register managed by OAM is a condition for the exercise of currency service providers and digital wallet service providers’ activity in Italy. Such registration is a fundamental requirement for virtual currency service providers and digital wallet service providers who have their domicile (in case of natural persons) or their registered office or administrative office (in case of legal persons) in Italy, whereas for EU entities, at least a permanent establishment in the territory of the Republic of Italy is required.
This registration obligation must be fulfilled by means of submission of a specific application to the OAM indicating, inter alia: (i) the corporate name of the entity other than the natural person; (ii) for entities with registered office in another Member State of the European Union, the address of the permanent establishment in the territory of the Republic of Italy; (iii) the surname, first name, place and date of birth, the tax code, if assigned, and the details of the identification document of the legal representative of the entity.
Virtual currency service providers and digital wallet service providers who already carry out this activity in the territory of the Republic of Italy must send the communication for registration in the special section of the Register within 60 days of its establishment as provided for in article 3 of the Decree.
The OAM is required to establish the Register within 90 days from the date of entry into force of the Decree. The OAM itself stated on 18 February 2022 that the special section of the Register will be operative by 18 May 2022 and that all virtual currency service providers and digital wallet service providers already operating at the opening date of the Register, and in possession of the legal requirements[1], will have 60 days from such date to communicate their operations in Italy and continue to exercise the activity without having to wait for the OAM’s decision on registration in the Register. In case of non-compliance with the above-mentioned deadline, or refusal of registration by the OAM, the exercise of the activity will be considered abusive.[2]
In addition, on a quarterly basis, virtual currency service providers and digital wallet service providers must send to the OAM, a communication containing all the data relating to transactions carried out on the territory of the Republic of Italy indicating specifically: the identification data of the customer and the summary data relating to the overall operations of each virtual currency service providers and digital wallet service providers for each customer. These data are retained by OAM for ten years, ensuring the provision of appropriate data storage, security and recovery systems.
The OAM, if requested, will cooperate and will transmit all the data referred to in article 5 of the Decree promptly to the special currency police unit of the Guardia di Finanza and to the Police Forces.
Brief final considerations
The MEF Decree will allow to better control the operations of service providers related to the use of virtual currency and digital wallet service providers that carry out such activities in the territory of the Republic of Italy, reinforcing the anti-money laundering and counter-terrorism financing safeguards already in place.
The Decree is part of a broader regulatory framework, still evolving and in which the anti-money laundering regulation is the only to set out clear regulatory provisions. As oftoday, the entry into force of the MiCA Regulation (“Regulation of the European Parliament and of the council on Markets in Crypto-Assets and amending Directive (EU) 2019/1937”) has to be waited for a further strengthening of the regulatory provisions on cryptocurrencies.
[1] Please see. art.17-bis, paragraph 2, of Legislative Decree no. 141/2010.
[2] OAM, Press release “OAM: ENTRO IL 18 MAGGIO OPERATIVO IL REGISTRO DEGLI OPERATORI IN CRIPTOVALUTE”, 18 February 2022, Rome.
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