Cryptocurrencies, between money, currency, means of payment and financial product. an alternative financial tool?

by Leopoldo Esposito* – Hajdú József**

ABSTRACT: 

The jurists’ task, as well as the purpose of this paper, is to deepen and understand the innovations offered by technology. On the one hand, it is important to exploit the available opportunities and, on the other hand, it is necessary to protect consumers from these new risks. In this sense, the present work moves on a dual track. Initially, an attempt will be made to qualify (and classify) cryptocurrencies, and then to verify the potential of these new technologies, including with a view to considering them as a possible form of business financing. The legal qualification of virtual currencies suffers from the variety of their declinations and, therefore, the difficulty of synthetically describing a relatively new and certainly complex phenomenon. Moreover, the fragmentary nature of their legislative recognition and, therefore, the impossibility of giving the latter a complete systematisation makes the jurist’s task even more complex. Hence, having overcome this attempt at qualification, the work will subsequently attempt to buy whether, and how, the phenomenon of ICOs can be harnessed in the future.

SUMMARY: 1. Introduction of method and content.– 2. Reconstructive profiles of crypto-activity legal nature. – 3. The challenging legal qualification of cryptocurrency: between asset, currency, means of payment or financial instrument, securities, or financial product. 3.1. The ongoing assimilation of cryptocurrencies to money, currency and means of payment. – 3.2. Money token within the classification as good, commodity and IT document. – 3.3. Cryptoassets as financial products, financial instruments or securities, and cryptocurrency as financial product. – 4. The Initial Coin Offerings as an alternative capital raising tool – 5. Bitcoin: between currency and alternative financing tool. – 6. Conclusion.

1. Nowadays, cryptocurrencies are as much widespread around the world that has become thoughtless not to study and explore the related field. This new type of technology was born in 2008 when Mr. Satoshi Nakamoto released the white paper for a new cash payment system (namely, the Bitcoin[1]), which effectively invented the blockchain technology[2]. Ever since there has been an emergence and proliferation of stable cryptocurrencies that led to the creation of around 10,000[3] different crypto-assets[4] worldwide. Given the significant and rapid diffusion[5] in recent years of this new instrument, the jurist’s responsibility will be to outline the legal parameters within which to enclose this case and, consequently, determine the appropriate (or, when applicable, the existing) regulation. On the other hand, the market’s challenge will be to evaluate its countless possible applications, attempting to exploit the technologies at the base of this new tool and to apply it to everyday life, as well as to the small, medium and micro enterprises[6] financing.

It should be borne in mind that SMEs make up 99% of businesses in the EU[7], but despite this, they are often the companies that face the greatest difficulties in gaining access to bank credit[8], especially during economic crises[9]. Given the limited access to bank debt capital and the financial squeeze companies had been witnessing during periods of economic crisis, it is worth questioning whether bank financing can still be considered as the main source of supply for businesses or as deemed opportune, it should be evaluated existing alternatives that are functional in responding to entrepreneurial needs, i.e. attempting to think of new methods of business funding.

In order to deal with the above query, the paper will essentially be structured in two branches, which raise two main issues. Firstly, it is crucial to determine cryptoassets legal qualification under Italian law and, secondly, once the interpretative question is dealt with, it would be important to understand whether and how to regulate them. Whereas, the present work aims to understand and analyze how the usage of this new technology can support the SMEs financing, and therefore if cryptocurrencies can be adopted as an alternative financing tool, above all in the form of initial coin offerings. For this reason, it will be necessary to first attempt legally defining the concept of cryptocurrency. Secondly, it deems opportune to ascertain the current (if any) legal framework of the case, and finally, to speculate whether at the state of the art, or in the future, this tool can be complementary to the ordinary financing channels currently used in EU and in Italy.

2. A major obstacle to the analysis and the formulation of clear policies for the emerging cryptoasset and blockchain industry is the lack of clear and common terminology. Certain terms in the world of FinTech are often used improperly and interchangeably, and this is often due to both the lack of clear regulatory definitions, and the absence of technical knowledges in this upcoming field. Even the term cryptoasset lacks a specific definition and it is widely used as an umbrella term to refer to digital tokens[10] that are issued and transferred on DLT systems. Nevertheless, it is possible to borrow the definition of token from the ESMA Advise, according to which a virtual token is «any digital representation of an interest, which may be of value, a right to receive a benefit or perform specified functions or may not have a specified purpose or use»[11] or a representation of legal relations which exploits a technology that «exhibits profiles of analogy with the mechanism of creation of securities, that is, the incorporation of the rights of the subscriber in a certificate, which constitutes a title of legitimacy for their exercise but also an instrument for their easier transferability»[12].

For our purposes, hence for the framing of the cryptocurrency sub-species, we will use the definition of crypto-asset coined by EBA, according to which «cypto-assets are a type of private asset that depend primarily on cryptography and distributed ledger technology as part of their perceived or inherent value»[13]. A similar approach, albeit partially implemented, seems to be followed by the proposal for a regulation on cryptoassets in the relative definition, Proposal for a Regulation of the European Parliament and of the Council on Markets in Crypto-assets, and Amending Directive (EU) 2019/1937 (henceforth, MiCAR) where «”crypto-asset” means a digital representation of value or rights which may be transferred and stored electronically, using distributed ledger technology or similar technology»[14].

Whilst certain essential elements in the definition of cryptoassets are preserved (such as the transfer of them using DLT, or other similar technology), it shifts from the EBA’s identification of crypto-assets as a type of private asset, to MiCAR’s identification of them as a digital representation of value. Although both formulas are suitable the scope within, it nevertheless has to be considered that by virtue of the continuous evolution of the sector de quo, there can be no univocal qualification of crypto-asset[15]. Due to the great variety of existing models of cryptoactivity, each of which can present specific peculiarities, it would seem a vain effort to bring back to unity such a variegated phenomenon. Nonetheless, it would seem largely acceptable to classify three macro-categories of cryptoactivity, such as investment tokens, utility tokens and payment/exchange/currency tokens[16]. Each of the mentioned token category has different features and/or serve different functions. The investment type may bear some profit rights attached, like equities, equity-like instruments, or non-equity instruments. In lieu, utility tokens provide some ‘utility’ or consumption rights, e.g., the ability to use them to access or buy some of the services/products that the ecosystem in which they are built aims to offer[17]. Lastly, the currency tokens, or cryptocurrencies, may serve as a means of exchange or payment for goods or services that are external to the ecosystem (the issuing platform) in which they are built. It may also happen that a token encompasses the features of multiple models, being hybrid token[18].

Investment tokens issued in an ICO are some ways equivalent to shares, bonds, or units in collective investment vehicles securities, in the sense that provide their subscribers with future returns, in the form of financial benefits and/or rights in relation to the project they are attached to[19]. By an ICO of utility tokens, those will convey some functional utility to investors other than payment for external goods or services, in the form of access to a product that the developers themselves have created or are creating[20]. Lastly, currency tokens are created by the launch of an ICO in which a user can exchange the cryptocurrencies with other tokens (for example by bitcoin) or paying by means of fiat.

As regards the case of our interest, the cryptocurrency, it is firstly necessary to appreciate the essence of this phenomenon. In terms of methodology, it will be necessary to understand the economic transaction behind it, where cryptocurrency is certainly a res in commercium that has significance for the legal system simply due to the fact that there are parties willing to exchange money in order to dispose of it[21].

3. There is a preponderant confusion and impressive disorder both amongst scholars[22] and jurisprudence[23] regarding cryptoactivity. Over time, European institutions have demonstrated enormous scepticism and mistrust towards this new tool, alerting (as in the case of ESMA Advice) consumers to the dangers of cryptocurrencies[24]. Nonetheless, for the purposes of this paper, we will attempt to bring order, where possible, to legally frame the phenomenon of a particular species of cryptoactivity: payment tokens, better known as cryptocurrencies. Preliminarily, it seems opportune to specify that the cryptocurrency phenomenon contains within itself a double identity. As a matter of fact, there is an internal or structural soul of cryptocurrency, meaning the more strictly “technical”[25] side of cryptocurrency and the related studies that mainly deal with the functional technique of this instrument. These studies focus on the functioning of these instruments and on the relative modalities of exchange, issuance, possession, and circulation of the same[26]. In order to understand if and how cryptocurrencies can be used as an alternative financing tool for companies, we will try to determine the correct legal framework of this new phenomenon. Subsequently, having obtained a legal definition of this case, we will try to give an answer to the main query, i.e. if cryptocurrencies and related application can be used to raise capital for SMEs. Looking for a correct legal framework – in the analytical perspective that we have seen aimed at analyzing the “external” manifestation of the phenomenon – we propose here to submit to a first investigation the cryptocurrency in its dimension, alternatively, of asset, currency, means of payment or financial instrument, securities or financial product, which may variously come to be the object of holding, accumulation, exchange, offer, financing, investment etc., having then to question first of all on the legal qualification of that “cryptocurrency”.

3.1.Studying cryptocurrencies, the interpreter is inclined to match them with money. The nomen, as well as the concept at the bottom of cryptocurrency, i.e. decentralized money, without the State’ s intervention, naturally leads the researcher to convey them in the money notion[27]. Nevertheless, as it is not possible to reject this interpretation in principle, it will be necessary to try verifying whether cryptocurrencies fulfill the currency requirements and whether they can be equated to it, in other words, where currency has the meaning of legal tender. In order to do so, it will need the aid of authoritative research carried out until present days on this matter, and although those are a significant number, it will allow to determine (at least at the current state of the art), if cryptocurrency is assimilable or not to money. Besides, it is necessary to underline preliminarily that a definition of cryptocurrency has already been provided both by the Italian and the European legislator, but nevertheless it cannot be considered crucial of the quaestio iuris[28] herein.

The most authoritative doctrine, as stated by Ascarelli[29], has pointed out that the legal system does not provide any definition of currency, referring the matter directly to economic reality both as regards the definition of currency, as well as the concrete determination of what, in each moment, functions as currency according to the well-known sentence «money is what money does»[30].

In principle, among scholars it seems obvious that the traditional concept of currency is certainly outdated, as the notion of currency is now dilated and decomposed in the wider idea of payment system[31]. Set the stage by extending the concept of currency, it will be possible to theoretically verify the assimilability of cryptocurrency to money[32].

In its classical meaning, the term currency mainly refers to the Statist theory, which considers currency the one created and guaranteed by the State, that is administered under its authority. Not claiming exhaustiveness, which would require more in-depth studies not suitable hereby, according to this theory currency is mainly characterized by two features: the discharging power, which consists in the power to extinguish pecuniary obligations[33] (so called legal tender) and the impossibility to refuse it as a means of payment (so called forced tender)[34]. The concept of legal tender and forced tender are inevitably linked to the power of the State[35] to impose the acceptance of its currency in its own territory, as it is expressed in the official unit of account of the State[36]. Willing to apply the Statist theory, cryptocurrencies lack the essential elements that justify their recognition in the legal system (at least in Italy[37]), as they deprive of the indicated clearance since the State, in the exercise of its sovereign power[38] to define its own monetary unit of reference, has not recognized them[39].

A different approach in the attempt to qualify currency is the functional one, which adopts a working definition of money related to its three main functions. According to this theory, currency can be identified through the coexistence of its three functions, as evidenced according to an unsurpassed classification dating back to Aristotle’s Nicomachean Ethics[40], consisting in the unit of account, means of payment and store of value[41]. The unit of account means the ability to measure and express the value of flows and stocks of goods, services, and assets; as a means of exchange, currency must be able to allow commercial transactions. Finally, the store of value consists in the aptitude of currency to preserve its purchasing power over time, allowing its future use to meet the needs of its owner.

Given the above, it does not seem that cryptocurrencies can be equated to currency even following the functional thesis[42]. This is because, even though they are an efficient means of exchange, including at transnational level, cryptocurrencies are subject to value fluctuations (thus lacking the requirement of the store of value[43]) and are not able to express a defined value of goods, also commensurate with the value of legal currencies recognized by the States (Euro, Dollar), being weak even under the aspect of the unit of account[44]. Nevertheless, this should not mean that cryptocurrencies, and in particular cryptocurrencies characterized by a fixed number (e.g., Bitcoin), which cannot be created in an indeterminate number, cannot be equated to legal money in the future. Indeed, the most important element that cryptocurrencies seem lacking to be equalised to currency is their ability to discharge the obligor from the pecuniary obligation. Where this element is recognized by the creditor of the pecuniary obligation, and then in the case which the creditor accepts the payment in Bitcoin, it would seem unreasonable to deny, at least under the strictly practical aspect, to the cryptocurrency par excellence, the value of legal money[45].

Notwithstanding the above, authoritative doctrine[46] argues primarily (as it seems correct) that cryptocurrency undoubtedly fulfills one of the main functions of currency, that of instrument of intermediation in exchanges[47], or in other words, as a mean of exchange[48]. If not qualifying as legal tender, according to the functional theory of currency, virtual currencies would at least be classifiable as complementary currencies, thus admitting the application of the discipline of pecuniary obligations under article 1278 Civil Code. Nonetheless, it cannot be ignored that such a conclusion (recalling that article 1278 Civil Code is generally applied to transactions regulated in foreign currencies) could clash with the “anarchic” nature of virtual currencies, since the same would not seem to be considered as a currency which is legal tender in any foreign country[49].

Besides the scenario wherein States and their members recognize cryptocurrencies as legal tender, at the state of art cryptocurrencies apparently do not seem to fit within the concept of legal tender neither theoretically nor practicing speaking[50].

3.2.Given the complexity faced by scholars in the assimilation of cryptocurrencies to legal currency and money, the following will attempt to clarify if there can be a qualification of cryptocurrencies on a private law basis. Prior to assess the assimilability of cryptocurrencies to the definition of good ex article 810 c.c., rather than commodity or IT document, it is necessary once again to specify that the legal frame of cryptocurrencies within the Italian legal system should (at the state of art) be carried out case by case. In fact, money tokens are, singularly analyzed, very different each other[51]. This stated, to establish the assimilability of payment tokens to goods within the meaning of the Italian codified definition, preliminary reconstruction of the relative notion in article 810 of the Civil Code is required. The category of legal goods includes, inter alia «cose che possono formare oggetto di diritti». First, it will be necessary to determine whether cryptocurrencies can be included into the definition of “things” (sub-species of material things – res – or, at least, of immaterial entities) in the legal sense.

To draw the aforementioned notion of good, it refers to the main studies in subiecta materia, which have enclosed the notion of thing, rectius good, in three macro categories such as, the thing as an asset subject to ownership[52], the thing as an entity that has an exchange value or a use value[53], the thing as an entity worthy of protection[54] by the legal system[55]. Referring exclusively to the three categories of “thing” that come from the notion of good, it would seem (though conditional is mandatory) that cryptocurrencies can abstractly fall into all these three cases. Indeed, cryptocurrency is suitable for possession, has an exchange value and, consequently, can be reasonably considered worthy of protection. Nonetheless, and bearing in mind that the above considerations merely reflect the literal interpretation of the rule, many scholars concurred that cryptocurrencies are excluded from the qualification of good. The main obstacle that arises to such recognition consists in the traditionally corporal conception[56] of the “thing” referred to in article 810 Civil Code. According to this well-established interpretation, intangible entities, and consequently cryptocurrencies, do not fall within the list of “things” as they lack the requirement of corporality. Consequently, exclusive rights (including the right of property) on entities other than “things” are regulated by a substantially typical system: the recognition of such rights remains subject to an explicit law[57] recognition. Among the arguments in support of the thesis that cryptocurrencies cannot be considered goods, some emphasize that article 810 of the Civil Code prescribes a numerus clausus of goods. Further motivation would be found in the fact that the “good” is what can constitute object of right and, as such, recalling again to corporal notion of the same[58]. Some have also considered that the semantic ambiguity of article 810 of the Italian Civil Code would leave the interpreter wide margin for discretion in the inclusion or exclusion of cryptocurrencies in the case of “goods” and, therefore, it would be appropriate an intervention of the legislator to regulate the case[59].

Notwithstanding the above, there is a large part of the literature that, with different reasons, would make payment tokens fall within the scope of article 810 of the Italian Civil Code[60]. Some believe that it is necessary to free the strict materiality of the thing from the good[61], ensuring cryptocurrencies included within. Other authors, moving from the objections of those who deny to cryptocurrencies the subjection to good, believe that cryptocurrencies are a digital representation of value[62], which is manifested by the private key that would provide the necessary possession of the same and, jointly, an absolute subjective right on an intangible asset. Cryptocurrencies do not constitute a compulsory legal relationship, but rather attribute to the owner a subjective legal position on an asset, which, although immaterial, would fall under the provisions of article 810 of the Italian Civil Code[63]. It must be remembered that also some law cases (even if a few) pronounced in favor of the qualification of cryptocurrencies as good[64]. It is necessary, in other words, to rethink the category of goods to include the new hypothesis, as argued by authoritative literature, in order to identify a new category of goods, the precarious goods or digital goods[65]. Indeed, it does not prove convincing those who claimed that cryptocurrencies would consist in an IT document[66], basing the study in question mainly on the process of alienation of cryptocurrencies, and not on their legal nature. So doing, not only lacks any kind of consideration on the cryptocurrency as a res, but it does not consider the hypothesis of mining as a form of disposal of payment tokens.

 3.3.Having considered the scholars’ attempts analyzed in the previous paragraphs to legally frame cryptocurrencies as currency or asset, the analysis will shift towards the assessment of the outcomes obtained by those scholars who have tried to qualify cryptocurrencies as financial instruments, financial products, or securities, as applicable.

Certain scholars have assimilated cryptocurrencies to financial instruments, arguing that the buyers of cryptocurrencies do so mainly for investment purposes[67]. An investment that is strictly profitable, considering that, due to the strong value fluctuations to which virtual currencies are normally subjected, they can generate faster gains (and losses) than ordinary asset classes. In some cases, the “Bitcoin” is assimilated to a financial commodity, intended as a financial product, where its purchase is made only for investment/speculative purposes[68]. Other authors have included cryptocurrencies in investment services[69]. According to this thesis, cryptocurrencies would be susceptible to be included in the category of financial products (and precisely in the category of the so-called unnamed financial products within the TUF definition), since the notion of financial product appears to be abstractly capable of embracing any instrument suitable for the collection of savings, however denominated or represented, as long as it represents a capital investment[70]. Conforming in this sense there has also been a case law within a cryptocurrency has been treated as a financial instrument or a security[71].

Backwards, it has been denied the possibility of qualifying cryptocurrencies as financial instruments pursuant to article 1, paragraph 2, legislative decree no. 58/1998 (hereinafter, T.U.F.), since «gli strumenti di pagamento non sono strumenti finanziari»[72]. According to this interpretation, since cryptocurrencies are means of exchange, they could not be assimilated to financial instruments and, consequently, be subject to the relative regulation. These Authors consider in fact that financial instruments are represented by a numerus clausus, consisting in an exhaustive list and not susceptible to analogical interpretation, which includes: transferable securities, money market instruments, shares of an undertaking collective investment, futures, swaps, and option agreements, as well as derivative financial instruments provided by article 1, paragraph 2-ter T.U.F. Amongst the supporters of this thesis, there are those that literally interpreted the law and categorically excluded that also the Bitcoin can be included in the above case, since it represents neither a security, nor a money market instrument and neither one of the other financial instruments listed above[73].

On the contrary, it would seem more appropriate to bring virtual currencies back into the category of financial products, defined by article 1, paragraph 1, letter u) of the T.U.F. as «gli strumenti finanziari e ogni altra forma di investimento di natura finanziaria».

Thus, financial products represent a two-tier category: on the one hand, financial instruments, as set forth by the legislator, and on the other, financial products, represented by «ogni altra forma di investimento di natura finanziaria», having an “open” nature and destined to be specified from time to time through interpretation and analysis of the concrete case. The notion of financial product is sufficiently broad to include any instrument that is suitable for the collection of savings, regardless of how it is called or represented, to the extent that represents a capital investment.

Capital investment that can result in a financial investment, which is composed of three main elements whereas, a capital allocation, generally referable to money or, more broadly, to an equity capital that can also correspond to a virtual currency; an expectation of return; and a risk of the chosen activity, directly related to the capital allocation[74]. Following a different approach, the financial nature of the transaction referable to financial products must be found in the purpose behind it, in the sense that the nature of the transaction must be assessed in relation to the normal destination of the asset being invested in, or from the point of view of the more complex transaction suggested by the provider[75]. These features could be well identified in the virtual currencies, as the person involved in the investment granted a sum of money to obtain it, expecting to achieve a return, not necessarily corresponding to the capital contribution increased compared to that invested[76] and assumed a risk related to the capital invested. It follows that virtual currency, when it assumes the function, i.e. the concrete cause, of an investment instrument and, therefore of a financial product, could be subject to financial intermediation discipline (articles 94 et seq. T.U.F.), which guarantees through a unitary framework of special law the protection of the investment and investor.

Indeed, the Court of Cassation itself has recently ruled conforming[77], changing (again) its view on the legal classification of cryptocurrencies, and in particular of Bitcoin, defining them as financial product «pertanto, allo stato, può ritenersi il bitcoin un prodotto finanziario qualora acquistato con finalità d’investimento: la valuta virtuale, quando assume la funzione, e cioè la causa concreta, di strumento d’investimento e, quindi, di prodotto finanziario, va disciplinato con le norme in tema di intermediazione finanziaria (art. 94 ss. T.U.F.), le quali garantiscono attraverso una disciplina unitaria di diritto speciale la tutela dell’investimento»[78].

However, the ruling above seems to create more questions than clarification. In fact, although this is not the place to comment on the Supreme Court’s pronouncement, verifying from time to time what the investor’s aim was, that is if he/she had investment purposes or not to consequently qualify cryptocurrency as a financial product or not, seems a particularly complex activity with a probatio diabolica[79].

Given the various orientations that alternatively make cryptocurrencies fall within the notion of financial instrument or financial product, it would seem more valid an ad hoc interpretation of the single cryptoactivities (and cryptocurrencies). In fact, it is not considered acceptable to assimilate cryptocurrencies to any of the two categories (financial instrument or product). In fact, it would seem appropriate (though hardly feasible) to distinguish cryptoassets individually (or de minimis, by category), to determine their relative legal status. More specifically, where cryptocurrency entitles the investor to any benefit or right of participation, it is necessary to refer to this performance / right to qualify the cryptocurrency. On the contrary, the notion of financial instrument would not seem to be applicable to cryptocurrencies, since they are a means of exchange; however, it is necessary to distinguish case by case, since if cryptocurrency is exchanged or offered on a financial market, then it could fall within the definition of financial product[80].

4.The analyses presented thus far show how it is not possible, as of today, to point towards a definitive legal framework for cryptocurrencies and that there are currently no Italian/European regulations governing them. Nevertheless, the phenomenon is strongly growing, such that token issuance has gone from “too small to care” to “too big to ignore”[81] for markets and regulators alike. The token issuance takes place mainly through the use of Initial Coin Offering[82] (hereinafter, ICOs). Although there is no precise definition of Initial Coin Offerings, it can be identified as the creation of digital tokens by small companies to investors, in exchange for fiat currency or first-generation dominant cryptocurrencies, such as the Bitcoin or Ethereum. ICOs are enabled using distributed ledger technologies, such as the Blockchain, which facilitate the exchange of value without the need for a trusted central authority or intermediary, allowing for important efficiency gains driven by such disintermediation[83]. The standard process of token issuance consists of certain fixed, pre-established steps. First, the issuer publishes on its website a document (called a white paper) containing a description of a business project (usually related to distributed technology, such as the development of an application or a new cryptocurrency), inviting market participants to finance its implementation through the purchase (online) in legal tender or, more often, in already existing cryptocurrency (mostly ether and bitcoin) of a certain number of tokens[84]. If, upon expiration of the deadline, the collection has reached the minimum amount (minimum cap) set, the activation of the smart contract will guarantee the allocation of the tokens to the subscribers, based on the exchange ratio; otherwise, the ICO shall be deemed to fail and the funds will be automatically returned[85].

Thus, ICO can be defined as an unregulated public offering of tokens built using blockchain technology whereby almost all tokens have been created using the technical standard Ethereum Request for Comment 20 (ERC-20)[86]. Once the ICO is over, tokens can be listed on special trading platforms and then exchanged on a type of secondary market, usually constituted by exchanges.. Thus, an ICO is a procedure for the placement of tokens – tokens endowed with certain rights – built through the use of blockchain technology and characterised by the broad freedom of the issuer in conducting the campaign: an innovative form of crowdsale that features elements of both inhomogeneity and identity with respect to traditional financing methods.

ICOs commonly proceed in the same way. First, the promoters of the ICO draw up a white paper, in which the investment programme is essentially described, then they launch a pre-ICO, consisting of a pre-sale of the tokens that will be the target of the future ICO and which is usually restricted to institutional entities or entities that have been/are involved with the design phase. Finally, the date is set for the start of the actual ICO, from which the public can participate (by purchasing tokens) in the project. We then distinguish two categories of tokens issued during ICOs[87], native tokens and on-chain tokens, where cryptocurrencies represent the native coins, while the actual tokens are sometimes identified as the blockchain tokens [88]. ICOs are thus a method of financing innovative entrepreneurial projects that, while recalling the Initial Public Offering, seem to be more comparable to a sort of crowdfunding 2.0, which is, however, characterised by relevant specificities: tokens do not have the same characteristics as corporate participations, such that the issuer can also be an entity without legal personality. Moreover, the presence of an intermediary is not necessary, and the purchase of tokens is almost always carried out through cryptocurrencies. This, and the significant diffusion of token offerings, seem to be the innovative elements that differentiate public token offerings from traditional forms of financing.

Given the above, an attempt should be made to figure out how ICOs fit into existing legislation or, conversely, whether specific regulation is desirable.

Some, with a view to expanding the number of ICOs and facilitating both the issuer and the individual investor, suggest not applying the Prospectus Regulation regime[89] to these forms of financing[90]. Indeed, it would seem reasonable to avoid particularly onerous restrictions on using this new form of investment for two reasons. Firstly, ICOs do not fit in properly with the Prospectus Regulation governing the issuance of financial instruments, which tend to be aimed at professional investors, and thus different from ICOs, which are aimed at consumers as well as professional investors. Secondly, it should be borne in mind that ICOs are born in a different spirit. Cryptocurrencies have their origin in the idea of disintermediation and self-management of the entire ‘monetary’ chain, which is based on a control mechanism between the various participants in the DLT. On the other hand, if one were to decide to apply all the existing rules on financial instruments to this form of alternative financing, there would be a risk that the logic of ICOs themselves would be undermined, and that the relative appeal they have achieved to date on the world market would be lost. It should also be considered that the reasons for the success of an ICO are unrelated to the disclosure of the project, in the sense of the disclosure typical of IPOs, such that it would seem pointless to burden these operations with obligations that are not compatible with the same[91].

In contrast, there are those who criticise the shortage of accurate information, as well as the absolute discretion that ICO issuers have in comparison to IPO issuers [92].

More specifically, these authors complain about the lack of precise legal and regulatory standards and the issuer’s absolute discretion regarding the quantity and quality of the information made available to the subscribers of an ICO, since there is no public control over the truthfulness of the information – whether few or many – transmitted to the public with the white paper.

Therefore, the key factor behind the ICOs’ future seems to be their regulatory profile: the presence of a streamlined, clear, concise and blockchain-friendly regulation is a precise demand of both campaign promoters and existing investors in the new digital market. On the other hand, the legislator’s attempt to regulate the new phenomenon in order to ensure adequate consumer protection seems to be crucial in such a rapidly expanding market.

5.With regard to the considerations above on cryptocurrencies, Bitcoin deserves different considerations. Indeed, a fundamental principle emerges from the results of the analysis, namely that cryptocurrencies lack the requisites that a currency must possess in order to be considered legal tender.

This cannot seem to be the case of Bitcoin. Indeed, regardless of the mystery surrounding this tool, it seems undeniable that the nature of the first cryptocurrency is considerably different to all other cryptocurrencies, and cryptoassets generally. In order to assess the nature of Bitcoin, we will therefore outline its main features. Bitcoin consists of a peer-to-peer payment network, like most cryptocurrencies, but unlike the others it is distinguished by having fixed and unchangeable rules [93]. The network composing Bitcoin is based on a form of self-governance without a central issuing authority. The network is programmed to ensure that the total number of existing Bitcoins never exceeds 21 million. Bitcoins are created through dedicated platforms, which mine new coins through a series of operations requiring considerable computing power.[94]. Moreover, the network is designed to produce a fixed number of Bitcoins per unit of time: 25 new Bitcoins were generated every 10 minutes until 2017, and that number has been halving every four years subsequently. Bitcoin transactions are rendered both anonymous and secure through the blockchain, which is a database of transactions that is shared by all nodes that are participating in the system. Basically, the network does two things simultaneously: first, it mines for coins by solving cryptographic problems; and second, it listens for transactions, which are processed and confirmed by being included in a block, which is then added to the blockchain – rather like a rolling spreadsheet that is shared and maintained by the network.

Besides, it seems appropriate, in order to define the nature of Bitcoin, to mention the socialist ideology of disintermediation behind Bitcoin’s holders and creator. The Bitcoin inventor aspires to create an alternative currency, disintermediated by government and central banks, without external interference and any sort of supervision[95]. Reason for the creation of an alternative currency originates from a critique of the economic and monetary system of most of the world’s countries. These countries produce money essentially on the basis of the sovereign states’ need for debt. The underlying principle is quite simple: the more the state goes into debt, the more money it produces. Except that the greater production of money inevitably leads to its depreciation and, consequently, to inflation[96]. Since the present is not the proper forum, a socioeconomic analysis of the role of sovereign states with respect to the issuance of banknotes is not appropriate, an attempt will instead be made to verify whether at least this cryptocurrency can be classified as money in the sense of a legal tender. Since the state theory of money, according to which money is only and exclusively that recognised by the state as such, is not applicable to Bitcoin, it is worth verifying whether the working theory of money is applicable, and thus whether Bitcoin possesses the three relevant features, i.e. unit of account, means of payment and store of value. Since its inception, Bitcoin’s growth in value has been exponential, reaching a value of approximately USD 70,000.00 in the last quarter of 2021[97], it would seem primarily attributable to Bitcoin that it is a store of value. In this sense, institutions’ criticism of the volatility of Bitcoin’s value cannot be accepted [98]. In the current case, store of value must in fact be understood as the long-term ability to store wealth and, net of periods of fluctuations in the value of Bitcoin, which are still relevant, Bitcoin has always grown in value, such that it can be attributed the status of store of value. It is obvious that this characteristic should be examined within a timeframe no shorter than that of Bitcoin halving (which the protocol establishes occurs every 4 years), in which the amount of Bitcoin mined decreases and, consequently, its value increases. Bitcoin can somehow also be deemed a means of exchange, especially in view of the adoption of this device as currency by some states and some large international companies[99]. Notably, Bitcoin can be considered as a means of exchange in the communities of small investors of this ‘currency’. Trickier though is the assimilation of Bitcoin as a unit of account, and this because its extrinsic value is always linked to an internationally recognised fiat (euro and dollar being the main ones). However, this should not preclude, at least abstractly, the feasibility of categorising Bitcoin as a currency.

Indeed, it must be considered that Bitcoin is always, or almost always, used as a means of payment in ICOs, whereby the first cryptocurrency is used to purchase the newly issued token in almost all transactions. Bitcoin is essentially used as a currency, a means of exchange, in ICOs, despite its fluctuations in value and despite the fact that it is not a unit of account, regardless of the economic risks associated with possible losses in the value of Bitcoin. In this sense, Bitcoin is fully assimilable to currency within the meaning of Article 1278 of the Italian Civil Code in that, although it is not «corso legale nello Stato», there is nothing to prevent it from being considered a currency in the strict sense of the term on a par with foreign currencies, for whose obligations the debtor «ha facoltà di pagare in moneta legale, al corso del cambio nel giorno della scadenza e nel luogo stabilito per il pagamento». In this type of transaction, the investor, if the buyer of Bitcoin can be so identified, accepts the risk of buying a token in order to finance a project. On the other hand, the issuer is willing to accept Bitcoin as a form of payment, identifying it as a secure means to finance his project.

Therefore, in the ICOs start-up companies can use tokens as instruments to finance their projects. Simultaneously, these companies accept Bitcoins as a payment tool for their ‘bonds’. Basically, ICOs seem to replicate a bond purchase mechanism, whereby the bondholder is required to pay the issuer with one type of currency (Bitcoin), and the issuer in return for financing a project described in the white paper, gives the bondholders securities, i.e. security tokens.

6.Although FinTech studies on all facets are abundant to date, and the institutions’ effort to understand this new branch of finance is profuse, e.g. with attempts to regulate the new phenomena, the state of the art on cryptocurrencies still seems to be confused and contradictory. First of all, there is still no unanimous opinion on the legal qualification of cryptocurrencies: as widely analysed, there are those (a minority) who associate cryptocurrencies with currency, and those who qualify them as financial instruments, digital documents, assets or commodities.

The efforts of jurists to qualify the cryptocurrency phenomenon must certainly be appreciated, as it is the jurist’s task to determine the limits within which to combine each new case. This is particularly true when these new instruments can be seen as useful innovations for citizens in terms of cost savings as well as efficiency. If, on the one hand, it therefore seems appropriate to define and identify cryptocurrencies in order to better regulate them and protect their purchasers, on the other, it seems even more urgent to seek maximum exploitation of the advantages that these new technologies can offer. Indeed, if the issuance of these new instruments were to be regulated, it could undoubtedly combine into an important innovation for the entire population. However, it is necessary to assess the other side of the medal. While the European legislator’s initiative to protect the population from the risks associated with ‘investments’ in cryptocurrencies is indeed laudable, the fear is that a holistic and strict regulation of cryptocurrencies may result in an excessive restriction and limitation of the potential of this new technology.As mentioned in the introduction, SMEs especially in Italy lack debt capital, indispensable for a company’s development. The consequence of this shortage is a slow growth of the national economy, which, not being able to count on the prosperity of the companies that make up the economic core of the country, suffers from significant global damage. And this despite the efforts of the Italian legislator[100]. Perhaps instead of demonising cryptocurrencies as the panacea of all ills [101], should be rethought as a great opportunity that hopefully will not be wasted or limited. Hope, in other words, for less obstructionism by institutions with respect to this new instrument. Thus, the expectation is that future regulatory proposals, unlike MiCAR, will be more business friendly, in the sense that they will not be turned into tight legislation aimed only at ‘blind’ consumer protection, but will also allow companies to take advantage of this new alternative form of financing

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[1] It is not known whether Satoshi Nakatomo refers to a person, a group of people or a pseudonym to identify the creator of Bitcoin. The document explaining what Bitcoin is, Bitcoin: A Peer-to-Peer Electronic Cash System, is available online at https://bitcoin.org/bitcoin.pdf. According to some Authors, Bitcoin was born as a direct effect of the 2007-2009 financial crisis, being the aim of cryptocurrencies to take back from the States sovereignty on monetary policy, Cappiello B., “Cepet leges in legibus. Cryptoasset and crypocurrencies private international law and regulatory issues from the perspective of EU and its Member States”, Rivista del Commercio Internazionale, n. 3, 2019, p. 563.

[2] A bitcoin, as a protocol token, is native to the Bitcoin blockchain network because bitcoins are created and transferred on the network as rewards to miners for maintenance of transaction flow. The network is managed by an open-source software protocol (“consensus protocol”) which governs how members of a blockchain network (colloquially called “miners”) process and validate protocol token transfers. In the case of Bitcoin network, miners compete in spending their computational resources to generate a valid block and add it to the blockchain ledger (“proof of work” consensus mechanism). Having added the valid block, the miner receives Bitcoins as a reward from the blockchain protocol and as a small transaction fee from the party to the validated transaction, Rohr J., Wright A., “Blockchain-based token sales, initial coin offerings, and the democratization of public capital markets”, Hastings Law Journal, n. 70, 2018, p. 470.

[3] Quantity of cryptocurrencies as of February 3, 2022, Number of cryptocurrencies worldwide from 2013 to February 2022, available online https://www.statista.com/statistics/863917/number-crypto-coins-tokens/#statisticContainer.

[4] A preliminary distinction must be pointed out as regards cryptoactivity and cryptocurrency, where the latter is a species of the genus of the former. The second section of this paper will deal more specifically with this essential difference.

[5] It should be born in mind that only in 2019 ESMA remarked on the consistent growth of this phenomenon reporting that at that time there were about 2050 crypto assets, ESMA Advice on Initial Coin Offerings and Crypto-Assets (ESMA50-157-1391), 9 January 2019, p. 8 (herewith “ESMA Advice”): «Hundreds of crypto-assets have been issued since Bitcoin was launched in 2009. There are more than 2,050 crypto-assets outstanding representing a total market capitalisation of around EUR 110bn as of end-December 2018 – down from a peak of over EUR 700bn in January 2018», online https://www.esma.europa.eu/sites/default/files/library/esma50-157-1391_crypto_advice.pdf.

[6] Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises, C(2003) 1422, GU L 124, 20 May 2003.

[7] Fact Sheets on the European Union, europarl.europa.eu/factsheets/it/sheet/63/piccole-e-medie-imprese.

[8] As proof of the decades-long interest of European institutions in this subject, reference should be made to one of the most important initiatives adopted to date by the EU on this matter, Communication on the Small Business Act (SBA) (COM(2008)0394).

[9] Although the intervention of the EU in the last economic crisis resulting from the pandemic was characterized by a joint and coordinated intervention of the Member States (see in this sense, Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak (2020/C 91 I/01), the Temporary Framework is also extended until 30th June 2022, online ec.europa.eu/competition-policy/state-aid/coronavirus/temporary-framework_en), it would seem unquestionable to recognize that additional sources of debt capital for European companies would undoubtedly have been useful for a faster economic recovery.

[10] Even if the word token recalls in the collective imagination to a new term, tokens have already been used for several decades in electronic recordkeeping systems. In this sense, Blandi A. et al., “Global cryptoasset regulatory landscape study”, University of Cambridge Faculty of Law Research Paper, 2019, p. 14, in which Authors qualify «a digital token is simply a string of characters that constitutes a cryptographically-secure representation of a set of rights that can be used within a specific context».

[11] ESMA Advise, p. 42.

[12] FINMA, ICO Guideline, 16 February 2018.

[13] Report with advice for the European Commission on crypto-assets, 09 January 2019, available online https://www.eba.europa.eu/eba-reports-on-crypto-assets. While the EBA’s definition of crypto-asset is appropriate for the purposes of this paper, it should be kept in mind that the definition is not unanimous in the literature, where some consider that crypto-assets can be divided into three major views, such as the “broad view” that encompasses all types of digital tokens issued and transferred via both open and permissionless; the intermediate view includes all types of digital tokens issued and transferred via permissionless DLT systems with open access and public transaction history. The tokens do not necessarily need to perform an essential function for the underlying network to operate properly as well as closed enterprise DLT systems; and the narrow view that exclusively refers to digital tokens issued and transferred via open, permissionless DLT systems that play an essential role in the functioning of the underlying distributed ledger or application, Blandi A. et al., op. cit., p. 16.

[14] Proposal for a regulation of the European parliament and of the council on Markets in Crypto-assets, and amending Directive (EU) 2019/1937, (COM(2020) 593 final-2020/0265(COD).

[15] This is also the view of ESMA which believes that «there is no “one size fits all” solution when it comes to legal qualification», ESMA Advice. At a national level, a definition of the phenomenon was provided by the Italin Authority for Financial Markets – Consob in its Documento per la discussione – Le offerte iniziali e gli scambi di cripto-attività, March 2019, where «appare ipotizzabile definire le cripto-attività (o crypto-assets) in modo di dare evidenza della natura di registrazioni digitali rappresentative di diritti connessi a investimenti in progetti imprenditoriali. Al fine di cogliere, in particolare, la peculiarità dell’impiego di tecnologie del tipo comunemente noto come distributed ledger technology o blockchain, le suddette registrazioni digitali dovrebbero essere create, conservate e trasferite mediante tecnologie basate su registri distribuiti, alle quali tuttavia occorre riconnettere la capacità di consentire l’identificazione del titolare dei diritti relativi agli investimenti sottostanti e incorporati nella cripto-attività o crypto-asset. In ultimo, la categoria dovrebbe ricomprendere soltanto quelle cripto-attività che sono destinate a essere negoziate o sono negoziate all’interno di uno o più sistemi di scambi».

[16] The same classification has also been used by the European legislator within Article 3 (Definitions) of MiCAR proposal in fact it distinguishes three types of token, «’asset-referenced token’ means a type of crypto-asset that purports to maintain a stable value by referring to the value of several fiat currencies that are legal tender, one or several commodities or one or several crypto-assets, or a combination of such assets; ‘electronic money token’ or ‘e-money token’ means a type of crypto-asset the main purpose of which is to be used as a means of exchange and that purports to maintain a stable value by referring to the value of a fiat currency that is legal tender; and ‘utility token’ means a type of crypto-asset which is intended to provide digital access to a good or service, available on DLT, and is only accepted by the issuer of that token».

Indeed, the Financial Conduct Authority (FCA) classifies tokens within three major catogories, exchange tokens, utility tokens and security tokens, FCA Guidance on Cryptoassets Feedback and Final Guidance to CP 19/3, Policy Statement PS19/22, July 2019. In the same sense in literature please consult Carriere P., “Il fenomeno delle cripto-attività (crypto-assets) in una prospettiva societaria”, Banca Impresa Società, n. 3, 2020, p. 463, Cappiello B., op. cit., p. 566, Hacker P., Thomale C., “Crypto-securities regulation: ICOs, token sales and cryptocurrencies under EU financial law”, European Company and Financial Law Review, n. 4, 2018, p. 650.

[17] An example of utility token is Filecoin, this is attached to a decentralized storage network and has the function of reward its users providing storage space to the network.

[18] ESMA Advice, p. 8

[19] Ferrari V., “The regulation of crypto-assets in the EU–investment and payment tokens under the radar”, Maastricht Journal of European and Comparative Law, n. 3, 2020, p. 329.

[20] Hacker P., Thomale C., op. cit., p. 652. The A. point out that Ethereum itself, besides being a cryptocurrency, also offers the functionality of serving as a platform for smart contracts and, by extension, for other tokens. By this, users can pay transaction fees or, they can use ether tokens not only to directly transfer value, but also to purchase access to Ethereum’s decentralized computing and smart contract platform (the Ethereum Virtual Machine, EVM).

[21] Befani G., Contributo allo studio sulle criptovalute come oggetto di rapporti giuridici, Diritto dell’economia, n. 3, 019, p. 385.

[22] Contradictions within scholars will be analysed throughout the paper, in particular with reference to the definition and legal framework of cryptocurrency.

[23] On a domestic level it is indeed possible to refer to real contradictions in the framing of the phenomenon of cryptoassets, rather than mere confusion. By decree no. 7556/2018, July 18, 2018, the Court of Brescia, specialized business division, in rejecting the claimant’s appeal requesting an orderly measure to register the resolution by which a certain cryptocurrency was conferred to service the capital increase, on the one hand in the grounds for the rejection of the measure repeatedly names cryptocurrencies as “coins”. On the other hand, in several points of the appeal, it recalled an assonance between the cryptocurrency and the “bene“, showing how the Court is totally unrelated to the notion of cryptocurrency, and not even concerned about the legal framework of cryptocurrencies as asset. In fact, in the above-mentioned decree, the only concern of the Court, as we can read in the motivation, was to assess the abstract suitability of the cryptocurrency in question, to meet the requirement of article 2464, paragraph 2, Civil Code. The decree in comment was subsequently also confirmed on appeal, Court of Civil Appeal, sec. I, Brescia, decree 24/10/2018. On this case, see Urbani F., “Il conferimento di cripto-attività al vaglio della giurisprudenza di merito”, Giurisprudenza Commerciale, n. 4, 2020, p. 887, Battaglini R., “Conferimento di criptovalute in sede di aumento di capitale sociale”, Giurisprudenza Commerciale, n. 4, 2020, p. 913, Flaim C., “Nuove frontiere del conferimento in società a responsabilità limitata: il caso delle criptovalute”, Giurisprudenza Commerciale, n. 4, 2020, p. 900 and Coan S., Paludet E., “Sull’ammissibilità del conferimento di criptovalute nel capitale sociale di s.r.l.”, Rivista di diritto societario, n. 4, 2019, p. 773. In contrast, with Sentence no. 18/2019 of the Court of Florence – Bankruptcy sec. “Bitgrail case”, published on 21/01/2019, the Court recognized the cryptocurrency in question as an asset pursuant to Article 810 of the Italian Civil Code. Otherwise, in a criminal trial, the Supreme Court of Cassation, in its judgment Cass. pen. sez. II, judgment September 25, 2020, no. 26807, held that «poichè le valute virtuali non sono prodotti di investimento, ma mezzi di pagamento, le stesse siano sottratte alla normativa in materia di strumenti finanziari» evaluating cryptocurrencies as means of payment (currency?) and not as an asset, the quoted sentences are available on https://onelegale.wolterskluwer.it/

[24] With Communication named “EU FINANCIAL REGULATORS WARN CONSUMERS ON THE RISKS OF CRYPTO-ASSETS” dated 17 March 2022, the European Supervisory Authorities (EBA, ESMA and EIOPA – the ESAs) warned consumers that «many crypto-assets are highly risky and speculative. These are not suited for most retail consumers as an investment or as a means of payment or exchange».

[25] Among the main features of cryptocurrencies, it is worth to remark: (i) open-source software, thank to which a core and trusted group of developers is essential to verify the code and possible changes for adoption by the network; (ii) decentralized, which is essential that it is not controlled by a single group of persons or entity; (iii) peer-to-peer, notwithstanding the idea on which cryptocurrencies are based (not to have intermediaries), it is possible to have pools of subnetworks forming; (iv) global; (v) fast; (vi) reliability; (vii) secure, proof of identity with encryption; (viii) sophisticated and flexible; (ix) automated; (x) scalable, in fact the system can be used by millions of users; and (xi) platform for integration, Cvetkova I., “Cryptocurrencies legal regulation”, BRICS Law Journal, n. 2, 2018, p. 131.

[26] Carrière P., “Le “criptovalute” sotto la luce delle nostrane categorie giuridiche di “strumenti finanziari”, “valori mobiliari” e “prodotti finanziari”; tra tradizione e innovazione”, Rivista di Diritto Bancario, n. 2, 2019, p. 127.

[27] Harari Y.N., Sapiens: A Brief History of Humankind, Londra, 2014, p. 193 ss., Proctor C., “Mann on the Legal Aspect of Money”, Oxford, n. 7, 2012, p. 345; Nussbaum A., “Money in the law, national and international: a comparative Study in the Borderline of Law and Economics”, Brooklin, 1950, p. 93, Inzitari B., “La moneta”, Moneta e valuta, in Trattato di diritto commerciale e di diritto pubblico dell’economia, (edited by) Galgano, VI, Padova, 1993, p. 88; Farenga L., La moneta bancaria, Torino, 1997, p. 122.

[28] This definition draws from the Legislative Decree No. 90 of May 25, 2017 (later modified by Legislative Decree no. 125/2019) amended Legislative Decree No. 231 of November 21, 2007, adding the definition of cryptocurrency in the article 1, paragraph 2, letter (qq), as «la rappresentazione digitale di valore, non emessa da una banca centrale o da un’autorità pubblica, non necessariamente collegata a una valuta avente corso legale, utilizzata come mezzo di scambio per l’acquisto di beni e servizi e trasferita, archiviata e negoziata elettronicamente». The amendments to Decree 231/2007 stem from Directive 2018/843 of the European Parliament and of the Council of May 30, 2018 amending the Anti-Money Laundering Directive 2015/849/EU, therein including the definition of virtual currencies as «”virtual currencies” means a digital representation of value that is not issued or guaranteed by a central bank or a public authority, is not necessarily attached to a legally established currency and does not possess a legal status of currency or money, but is accepted by natural or legal persons as a means of exchange and which can be transferred, stored and traded electronically». Indeed, there are those who question the accuracy of virtual currency definition introduced by the European legislator, arguing that on one hand the legislator denies the legal status of currency or money to cryptocurrencies, but on the other hand recognizes the function of medium of exchange to the latter, that is the main feature of currency, Di Martino M. C., “Soluzioni e prospettive sulla “natura giuridica” delle valute virtuali”, Banche, Intermediari e Fintech, (edited by) Cassano G., Di Ciommo F., Rubino De Ritis M., Milano, Giuffrè, 2021, p. 299.

[29] Ascarelli T., Studi giuridici sulla moneta, Milano, 1952 spec. 39; Id. Obbligazioni pecuniarie, Commentario del codice civile (edited by) Scialoja A., Branca G., Libro quarto. Delle obbligazioni, Bologna-Roma, 1959, p. 456.

[30] Spindt A. P., “Money is what money does: Monetary aggregation and the equation of exchange”, Journal of Political Economy, n. 1, 1985, pp. 175-204.

[31] Given the residuality that traditio pecuniae assumes nowadays in the daily legal traffic, classically understood as the physical delivery of money or banknotes (so-called “cash”) to the creditor by the debtor to free himself from the pecuniary obligation; this means being today mostly and increasingly supplanted by other “payment instruments” technologically more advanced and essentially dematerialized, see Carrière P., op. cit., p. 129. Thus, money represents substantially a payment instrument, but no longer the only existing means of payment, as there are in fact alternative payment instruments, such as checks, credit cards and bank transfers, which satisfy the same functions of cash, Befani G., op. cit., p. 386.

[32] The same European legislator demonstrates the difficulty of defining currency by overlooking the problem. In the directives on payment services, in fact, the subject of the harmonized discipline is the transfer of funds, rather than the currency itself, directive 2009/110/CE.

[33] In the last years, the Italian Supreme Court intervened on the discharging power of money with two judgments, most recently Cass. Civ., SS.UU., no. 26617 judgment of December 18, 2017, which extensively interpreted the meaning of “money” for the purposes of article 1277 of the Italian Civil Code, remarking that the object of the pecuniary obligation is not the “piece of money”, but the intrinsic value of the quantum debeatur, and provided that it guarantees the same satisfactory effect as cash, thus providing “legal” recognition also to the cheque, which is certainly not legal tender but falls within the so-called bank currencies. In the same sense, albeit more restrictive, see also Cass. Civ., sentence December 2, 2011, no. 25837, according to which «“moneta” [è] soltanto il mezzo di pagamento, universalmente accettato, che è espressione delle potestà pubblicistiche di emissione e di gestione del valore economico».

[34] Gasparri G., “Timidi tentativi giuridici di messa a fuoco del bitcoin: miraggio monetario crittoanarchico o soluzione tecnologica in cerca di un problema?”, Diritto dell’informazione e dell’informatica, n. 3, 2015, p. 417. The Author points out that currency is distinguished by its universal liberating power ipso iure.

[35] Ascarelli T., La moneta. Considerazioni di diritto privato, CEDAM, Padova, 1928, p. 304.

[36] At european Union level, the aforementioned Euro status as the only legal tender is provided by art. 128 of the TFEU, the clear literal content of which does not seem to leave any margin of interpretation for the extensive inclusion of cryptocurrencies, unless the Treaty itself is amended.

[37] In compliance also with the Bank of Italy that has stated that cryptocurrencies should not be considered legal tender «Le valute virtuali non sono moneta legale e non devono essere confuse con la moneta elettronica» Communication of January 30, 2015 – Virtual Currencies, by Bank of Italy.

[38] Barcellona E., Ius monetarium. Diritto e moneta alle origini della modernità, Il Mulino, Bologna, 2012, p. 92 ss.

[39] This thesis would actually seem to fail, at least on a territorial level, if there were acceptance of cryptocurrencies as legal tender. Consider, for example, the case of El Salvador, where with the acceptance of Bitcoin as a State currency, it would seem appropriate to re-evaluate the legal qualification (at least) of this cryptocurrency, Analytica O., “El Salvador bitcoin experiment comes with risks”, Expert Briefings, 2021, Sparkes M., El Salvador revamps bitcoin system, Elsevier, 2022.

[40] Reeve C. D. C., The Practices of Reason: Aristotle’s Nicomachean Ethics, Philosophical Review, 1992, p. 103.

[41] De Stasio V., “Verso un concetto europeo di moneta legale: valute virtuali, monete complementari e regole di adempimento”, Banca Borsa Titoli di Credito, n. 6, 2018, p. 747.

[42] Lemme G., “Monete Complementari e Criptomomente: tra anarchia e vigilanza”, [forthcoming], p. 11 http://www.associazioneadde.it/index.php/archivio-news/9-scritti-in-corso-di-pubblicazione/219-monete-complemantari-e-criptomonete-tra-anarchia-e-vigilanza.

[43] On an international economic level, there is who evaluated cryptocurrencies able to fulfil the requirement of store of value. Talking about Bitcoin, the Author considers the low supply growth rate as a satisfactory element to respect the store of value requirement to be a currency, Ammous S., “Can cryptocurrencies fulfil the functions of money?”, The Quarterly Review of Economics and Finance, n. 70, 2018, p. 40.

[44] Some scholars have treated cryptocurrencies in the opposite terms to those analyzed in this paper. These studies focus in particular on the acceptance of cryptocurrencies as a means of payment and on the non-requirement of an issuing authority. Indeed, even if extremely cautiously, it would seem that these hypotheses are not entirely to be discarded, at least according to what we have already seen in a ruling of the Court of Justice of the European Union, Case C 264-14, Skattegat v. Hedqvist. In this judgment, the Court qualified Bitcoin as a contractual means of payment between the operators who accept it, implicitly referring to the discipline of datio in solutum, giving a possible entry to an equalization with – at least – complementary currencies. In favor of the qualification (albeit partially) of cryptocurrencies to currency, G. Gasparri, op. cit., p. 417, the Author statued that «il bitcoin potrà forse divenire una nuova moneta secondo la teoria

funzionale, ma non alla stregua della teoria istituzionale», but on this point it must be keept in mind that Bitcoin has been recognized by El Salvador. Mancini N., “Bitcoin: rischi e difficoltà normative”, Banca impresa e società, n. 1, 2016, p. 119. In the same sense, considering Bitcoin both as a currency and a means of exchange, Cvetkova I., op. cit., p. 132.

[45] Complies also, Lemme G., Peluso S., “Criptomoneta e distacco dalla moneta legale il caso bitcoin”, Rivista di Diritto Bancario, n. 4, 2016, p. 392, which Authors believe that the obligations extinguishment function of Bitcoin is limited only to the context in which «previo accordo delle parti, Bitcoin venga accettata in pagamento».

[46] Starting by a reconstruction of the economic notion of currency, and then moving on to the legal framework of cryptocurrencies, the Author considers how cryptocurrencies may at least be used as an instrument of intermediation in exchanges, Cian M., “La criptovaluta-alle radici dell’idea giuridica di denaro attraverso la tecnologia: spunti preliminary”, Banca Borsa Titoli di Credito, n. 3, 2019, p. 320. In contrast, Masi D., “Le criptoattività: proposte di qualificazione giuridica e primi approcci regolatori”, Banca Impresa Società, n. 2, 2021, p. 253, the Author literally stated «In ogni caso, e a prescindere dagli aspetti definitori richiamati, la carenza congenita di alcuna forma di intermediazione nelle transazioni in criptovalute preclude l’applicazione della normativa in esame in ragione dell’impossibilità di individuare un soggetto responsabile per l’esecuzione degli ordini di pagamento trasmessi dai partecipanti alla rete cui attribuire il ruolo di «prestatore di servizi di pagamento». La difficoltà di attribuire alle criptovalute la qualificazione di moneta conduce, altresì, ad escludere che le stesse possano essere intese alla stregua di «mezzi di pagamento in valuta» ai fini dell’art. 17-bis, comma 1, del d.lgs. n. 141/2010».

[47] Equally authoritative doctrine (albeit older) concludes in the opposite sense, Bocchini R., “Lo sviluppo della moneta virtuale: primi tentativi di inquadramento e disciplina tra prospettive economiche e giuridiche”, Diritto dell’informazione e dell’informatica, n. 1, 2017, p. 35, arguing that, although assimilated to a means of payment “bitcoin” cannot fall within the scope of Directive 2007/64/EC, as the same is reserved for payments denominated in legal tender.

[48] In this sense also Judgment of the Court (Fifth Chamber) of 22 October 2015, Skatteverket v David Hedqvist Case C-264/14, paragraph 42, remarking that virtual currency can be considered a contractual means of payment «The “bitcoin” virtual currency, being a contractual means of payment, cannot be regarded as a current account or a deposit account, a payment or a transfer. Moreover, unlike a debt, cheques and other negotiable instruments referred to in Article 135(1)(d) of the VAT Directive, the “bitcoin” virtual currency is a direct means of payment between the operators that accept it». Also conforming resolution no. 72/E of 2016 of the Italian Revenue Agency on the tax treatment applicable to bitcoin purchase and sale transactions for VAT and direct tax purposes, as well as in the opinion of the National Council of Notaries no. 3-2018/B. Both determinations, while highlighting the difficulties of a legal framework of the case and finding a heterogeneity of views, attribute direct value to the indications contained in the above-mentioned pronouncement of the CJEU, considering preferable the thesis for which the cryptomonies constitute a conventional means of payment.

[49] Lemme G., Peluso S., op. cit., p. 396, Nori G. M., “Bitcoin, tra moneta e investimento”, Banca Impresa Società, n.1, 2021, p. 163.

[50] The majority doctrine is peaceful on this point. In fact, both moving from the statist theory and from the functional theory, scholars do not deem to attribute the value of legal money to cryptocurrencies. Nori G. M., op. cit., p. 163, De Stasio V., op. cit., p. 747, Carriere P., op. cit., p. 131, Bocchini R., op. cit., p. 35, Vardi N., Criptovalute e dintorni: alcune considerazioni sulla natura giuridica dei bitcoin, Il Diritto dell’informazione e dell’informatica, n. 3, 2015, p. 445. Cappiello B., op. cit., p. 570, De Luca N., Passaretta M., “Le valute virtuali: tra nuovi strumenti di pagamento e forme alternative d’investimento”, Le Società, n. 5, 2020, p. 573, according to the Authors «La moneta, infatti, persegue tre finalità: essere mezzo di scambio; essere espressione di un valore (unità di conto); conservare nel tempo il proprio potere d’acquisto (riserva di valore). Le valute virtuali non soddisferebbero, congiuntamente, i requisiti monetari illustrati. L’affermazione fa leva, principalmente, sulla incapacità, o comunque scarsa propensione, di alcune valute virtuali ad essere impiegate come mezzo di scambio, avendo invece attitudine a fungere da strumento d’investimento negoziabile in mercati secondari».

[51] Caloni A., “Deposito di criptoattività presso una piattaforma exchange: disciplina e attività riservate”, Giurisprudenza Commerciale, n. 5, 2020, p. 1080, pointing out that «La qualificazione delle criptoattività sconta l’eterogeneità del fenomeno».

[52] Santoro Passarelli F., Dottrine generali del diritto civile, Napoli, Jovene, 1954, p. 55.

[53] According to this academic opinion, article 810 Civil Code is a provision of maximum abstraction and the process of things legal objectification is based on the exchange value of the things themselves, i.e. the principle of patrimoniality, based on the assumption that in a market economy what has or has not value depends solely on the market, Barcellona P., Camardi, Diritto privato e società moderna, Napoli, Jovene, 1996, p. 229.

[54] Biondi B., I beni, Trattato di diritto civile Vassalli, IV, Torino, 1953, p. 15.

[55] Costantino M., “I beni in generale”, Trattato di diritto privato: Obbligazioni e contratti, (edited by) Rescigno P., vol. 3, Torino, 1982, p. 173, Jannarelli A., La disciplina dei beni tra proprietà e impresa nel codice del 1942, AA.VV., Letture di diritto privato, Bari, 1994, p. 97, De Nova G., I nuovi beni come categorie giuridiche, De Nova, Inzitari, Tremonti, Visentini (edited by), Dalle res alle new properties, Milano, 1991, p. 15.

[56] Zeno-Zencovich V., voce Cosa, Digesto IV ed. Disciplinare privatistiche – Sezione Civile, IV, Torino, UTET, 1989, p. 438.

[57] Accordingly, refusing that cryptocurrencies fall within the definition of property under Article 810 of the Civil Code, Masi D., op. cit., p. 249.

[58] De Luca N., Passaretta M., op. cit., p. 574, denying that the hardware on which cryptocurrencies are located can be considered “corporal” «È un’evidente forzatura identificare il bit circolante nell’etere nella impressione di esso in una memoria di silicio. Oggetto di circolazione non è il supporto fisico, ma solo ciò che esso consente di leggere».

[59] Befani G., op. cit., p. 408, The Author considers appropriate the inclusion of an ad hoc rule «magari attraverso un apposito art. 814-bis al Codice, rubricato «Criptovalute» e a tenore del quale «si considerano beni mobili le criptovalute che hanno valore economico»».

[60] Fauceglia D., “La moneta privata. Le situazioni giuridiche di appartenenza ei fenomeni contrattuali”, Contratto e impresa, n. 3, 2020, p. 1257; Lemme G., “Le risorse digitali nel paradigma dell’art. 810 cod. civ. ai tempi della blockchain”, Nuova giurisprudenza civile commentata, n. 5, 2021, p. 1215; Nori G. M., op. cit., p. 173.

[61] Caloni A., op. cit., p. 1081.

[62] Nori G. M., op. cit., p. 174.

[63] Rinaldi G., Approcci normativi e qualificazione giuridica delle criptomonete, Contratto e impresa, 1/2019, p. 291, the Author points out that «L’inquadramento delle criptovalute nella categoria dei beni giuridici è quello che appare più idoneo a racchiudere le ibride e multiformi caratteristiche di entità tanto “inafferrabili” da un punto di vista classificatorio»; De Stasio V., “Le monete virtuali: natura giuridica e disciplina dei servizi connessi”, Diritto del Fintech, Cian M., Sandei C. (edited by ), Milano, Cedam, 2020, p. 176.

[64] «La criptovaluta deve qualificarsi come “bene”, e come tale può essere oggetto di acquisto, scambio e deposito, ed è caratterizzata dall’essere bene fungibile, trattandosi di rappresentazioni digitali espresse in unità patrimoniali di un medesimo valore (art. 810 c.c.)», Tribunale Firenze, Sez. fall., 21/01/2019, n. 18, with comment of De Stasio V., “Prestazione di servizi di portafoglio digitale relativi alla valuta virturale “Nanocoin” e qualificazione del rapporto tra prestatore e utente”, Banca Borsa Titoli di Credito, n. 3, 2021, p. 399; in the same sense also, T.A.R. Lazio 27 gennaio 2020, within T.A.R. quoted the abovementioned trial «[…] riconduce le monete elettroniche al novero dei “beni immateriali” ex art. 810 cod. civ. (più precisamente beni mobili, la cui cessione sarebbe da assoggettarsi ad IVA ed IRPEF, a seconda della natura professionale o meno dell’attività del “miner” – produttore di moneta), suscettibili di formare oggetto di diritti reali ed obbligatori (in tal senso, si richiama la sentenza n. 18 del 21 gennaio 2019 della Sezione

fallimentare del Tribunale di Firenze)».

[65] Cian M., op. cit, p. 339.

[66] Bocchini R., op. cit., p. 33.

[67] It is worth highlighting that by treating cryptocurrencies as financial instruments according to the MiFID II Directive, ICOs would be governed by the relevant rules, and therefore: Prospectus Regulation (no. 2017/1129), MiFID II 2014/65/UE, Trasparency Directive (no. 596/2014/EU), Short Selling Regulations (no. 236/2012/EU) and Central Securities Depositories (no. 909/2014/EU), Settlement Finality Directive, AIFMD (no. 2011/61/EU), the Directive on Investor Compensation Schemes (no. 97/9/EC), the Directive on anti-money laundering or against the financing of terrorism (no. 2018/843/UE), Bruno S., “La raccolta del risparmio mediante emissione di cripto-attività: le Initial Coin Offerings”, Banche, Intermediari e Fintech, (edited by) Cassano G., Di Ciommo F., Rubino De Ritis M., Milano, Giuffrè, 2021, p. 277.

[68] Vardi N., op. cit., p. 445, the Author speaks about “Bitcoin” to address cryptocurrencies in general.

[69] Carriere P., “Il fenomeno delle cripto-attività (crypto-assets) in una prospettiva societaria”, Banca Impresa Società, n. 3, 2020, p. 464.

[70] Rinaldi G., op. cit., p. 289.

[71] «I bitcoin rappresentano uno strumento finanziario costituito da una moneta che può essere coniata da qualunque utente ed è sfruttabile per compiere transazioni, possibili grazie ad un software open source e ad una rete peer to peer. L’operazione di cambio di valuta tradizionale contro unità della valuta virtuale bitcoin e viceversa, effettuate a fronte del pagamento di una somma corrispondente al margine costituito dalla differenza tra il prezzo di acquisto delle valute e quello di vendita praticato dall’operatore ai propri clienti è qualificabile dal lato dell’operatore come attività professionale di prestazioni di servizi a titolo oneroso, svolta in favore di consumatori», Court of Verona, 24 January 2017, no. 195, in addition, in the case in examination, the Court did not exclude that cryptocurrencies may be idetified as «offerta al pubblico di prodotti finanziari» descritta dall’art. 1, lett. t) e u), del d.lvo. 24.2.1998 n. 58, ovvero ancora di quella dei “servizi e attività di investimento” in “valori mobiliari” ex art. 1-bis, comma primo, lett. c) e d)», with relative comment of Passaretta M., “Bitcoin: il leading case italiano”, Banca Borsa Titoli di Credito, n. 4, 2017, pp. 471-482; Razzante R., “Bitcoin: tra diritto e legislazione”, Notariato, n. 4, 2018, p. 384.

[72] Masi D., op. cit., p. 254.

[73] Nori G. M., op. cit., p. 176; De Luca N., Passaretta M., op. cit., p. 577.

[74] Annunziata F., “Commento sub. art. 94”, La disciplina delle società quotate, (edited by) Marchetti P., Bianchi L. A., Milano, Giuffrè, vol. I, 1999, p. 86.

[75] Comporti C., “La sollecitazione all’investimento, Intermediari finanziari, mercati e società quotate”, (edited by) A. Patroni Griffi, M. Sandulli, V. Santoro, Torino, Giappichelli, 1999, p. 550.

[76] Chionna V. V., “Le forme dell’investimento finanziario: dai titoli di massa ai prodotti finanziari”, Giuffrè Editore, 2008, p. 305.

[77] Court of Cassation Criminal Section, Cass. Penal, Section II, Judgment no. 44337 of 30 November 2021 (date of hearing 10/11/2021).

[78] Previously, the Supreme Court had already assimilated a cryptocurrency to a financial product, Civil Cassation, 2 December 2011, no. 25837, holding that «la moneta della Repubblica della Terra (denominate “Dhana”) non costituisce uno strumento di pagamento ex art. 1, comma 4, del d.lgs. 24 febbraio 1998, n. 58, ma si atteggia a prodotto finanziario», the quoted sentences are available on https://onelegale.wolterskluwer.it/.

[79] Formerly, Consob with several communications had already specified when an investment could be qualified as a financial product. In the attempt to legally frame cryptocurrencies, the Supreme Court seems to implicitly refer to these dated Consob resolutions: Consob Resolution n. 18077/1012, n. 17699/2011, n. 17547/2010, n. 17539/2010, n. 17128/2010.

[80] De Stasio V., “Prestazione di servizi di portafoglio digitale relativi alla valuta virtuale “Nanocoin” e qualificazione del rapporto tra prestatore e utente”, Banca Borsa Titoli di Credito, n. 3, 2021, p. 409.

[81] In 2019 alone, more than $ 3,3 billion USD have been raised in ICOs, Haffke L., Fromberger M., “ICO Market Report 2019/2020 – Performance Analysis of 2019’s Initial Coin Offerings”, December 30, 2020, available at SSRN: https://ssrn.com/abstract=3770793 or http://dx.doi.org/10.2139/ssrn.3770793.

[82] Saman A., Giudici G., Martinazzi S., “Why do businesses go crypto? An empirical analysis of initial coin offerings”, Journal of Economics and Business, n. 100, 2018, p. 66.

[83] OECD (2019), Initial Coin Offerings (ICOs) for SME Financing, http://www.oecd.org/finance/initial-coin-offerings-for-sme-financing.htm.

[84] The white paper is a central step in the ICO’s outcome: empirical studies show that the distribution of a complete and truthful white paper is one of the keys to the success of the transaction, a key component of the campaign. Therefore, it will be necessary for the ‘prospectus’ of the offer to indicate the reasons behind the entrepreneurial initiative and the economic sector of reference, the know-how of the promoters and their partners, the entrepreneurial strategy adopted in the long term, the type of token that will be placed on the market and the legal protections envisaged in favour of investors, Fisch C., “Initial coin offerings (ICOs) to finance new ventures”, Journal of Business Venturing, n. 1, 2019, p. 8.

[85] Sandei C., “Le Initial Coin Offering nel prisma dell’ordinamento finanziario”, Rivista di Diritto Civile, n. 2, 2020, p. 392.

[86] This is due above all to the great flexibility offered by Ethereum’s blockchain, which is based on a proof of stake mechanism instead of proof of work, which saves a considerable amount of energy in processing transactions, and is much faster than Bitcoin’s blockchain. Furthermore, Ethereum differs from Bitcoin in that the primary purpose of this blockchain is to provide users with a platform to incentivise the development of applications that run on blockchain technology.

It is no coincidence that in November 2015, the Ethereum platform was designed with a template that allows the creation, customisation and transfer of tokens operating directly on Ethereum without the necessity of creating one’s own blockchain, Pirani P. P., “Gli strumenti della finanza disintermediata: «Initial Coin Offering» e «blockchain»”, Analisi Giuridica dell’Economia, n. 1, 2019, p. 340.

[87] However, this distinction cannot be considered comprehensive of the macro-categories of tokens, as tokens can be further classified on the basis of the purpose assigned to them. In this sense, one can distinguish currency tokens, earning tokens, funding tokens, validation reward tokens (awarded as a reward for the validation of a block), work reward tokens (awarded as a reward for a certain behaviour of the token holder), voting right tokens (which grant voting rights in the network), asset ownership tokens and payment tokens., Gitti G., “Emissione e circolazione di criptoattività tra tipicità e atipicità nei nuovi mercati finanziari”, Banca Borsa Titoli di Credito, n. 1, 2020, p. 20.

[88] Oliveira L., Zavolokina L., Bauer I., Schwabe G., “To token or not to token: Tools for understanding blockchain tokens”, International Conference of Information Systems (ICIS 2018), San Francisco, USA, 12 December 2018 – 16 December 2018, p. 8.

[89] Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017.

[90] According to the authors, nowadays it would be useful to rethink mandatory disclosure in another form, considering the possibility that investors provide information themselves, rather than the issuer having to inform with hundreds of pages of prospectus that will not be read by investors and that in substance do not always overcome the problem of information asymmetry, Ferrarini G., Giudici P., “Digital Offerings and Mandatory Disclosure: A Market-Based Critique of MiCA”. European Corporate Governance Institute-Law Working Paper, in (edited by) Avgouleas E., Marjosola H., Digital Finance in Europe: Law, Regulation, and Governance ECFR, Special Volume 5, De Gruyter, 2021, p. 99.

[91] Indeed, the success of an ICO goes beyond the information provided to investors. First and foremost, one must consider the savings in issuance costs, since the collection of economic resources among investors is essentially at zero cost, since there is no need for a bank, an investment agent or a financial operator to process the offers and sales of the tokens or to materially execute the transfer of money in favour of the issuer. It should also be considered that the zero transaction costs are significant even after the conclusion of the ICO: tokens are linked to smart contracts that allow for the automatic application of contractual clauses without the need for an intermediary. Yet the market liquidity, both in the actual offering phase and after the conclusion of the campaign, is a further benefit. Market liquidity that is generated, at first, by the ICO promoters themselves by underestimating the economic value of the tokens and placing a limited number of them on the market to incentivise investors to immediately subscribe the offer. A final winning factor of an ICO is the lack of specific regulation that allows the promoters, on the one hand, to shape the campaign according to their preferences and, on the other hand, not to have to comply with investor protection regulations that are present in a traditional crowdfunding or IPO.

[92] See Pirani P., op. cit., p. 336.

[93] Regarding the non-modifiability of the Bitcoin protocol, it should be pointed out that it is a relative immodifiability. Indeed, should the absolute majority of the participants in the protocol decide to modify certain rules of the same, this would be abstractly possible. However, it should be pointed out that, given the diffusion of Bitcoin in millions of portions, the so-called ‘Satoshi’ (according to one estimate, Bitcoin holders by 2021 would be about 100 million, Wall Street Journal, Bitcoin’s ‘One Percent’ Controls Lion’s Share of the Cryptocurrency’s Wealth, Paul Vigna, 20 December 2021) it would seem highly unlikely that such a large number of people would be able to reach an agreement on changes to the Bitcoin protocol, Bitcoin: A Peer-to-Peer Electronic Cash System, is available online at https://bitcoin.org/bitcoin.pdf.

[94] Dodd N., The Social Life of Bitcoin, Theory Culture & Society, n. 35, 2018, p. 37.

[95] Maurer B., Nelms T.C., Swartz L., ‘When perhaps the real problem is money itself!’: The practical materiality of Bitcoin, Social Semiotics, n. 23, 2013, p. 265.

[96] In this sense see also Roger Ver, ‘How Bitcoin Can Stop War’, 22 July 2014. Available at: http://original.antiwar.com/roger_ver/2014/07/21/how-bitcoin-can-stopwar/, according to «Bitcoin will prevent governments from being able to just print money at will and then use that to buy tanks and guns and bombs to murder people around the world».

[97] Bitcoin Hits Latest All-Time High Close To $69,000 As Multiple Factors Drive Gains, 10 November 2021, Forbes, available at https://www.forbes.com/sites/cbovaird/2021/11/10/bitcoin-hits-latest-all-time-high-close-to-69000-as-multiple-factors-drive-gains/?sh=2e2d1cd92ec9

[98] See, inter alia, Caponera A., Gola C., “Aspetti economici e regolamentari delle «cripto-attività»”, Quaderni di Economia e Finanza, Banca d’Italia Occasional Papers, n. 484, March 2019, pp. 5, according to «le “cripto-attività” tipo bitcoin non presentano chiari benefici economici o sociali, limitandosi a soddisfare le esigenze di alcuni agenti economici che amano investire in attività dal prezzo altamente volatile». The affiliation of cryptocurrency buyers with speculative agents does not appear to be supported. Indeed, among the largest buyers of cryptocurrencies are consumers. In addition, the lack of accuracy in the assimilation of ‘bitcoin’ to ‘other crypto assets’ is not creditable.

[99] Regarding some firms accepting Bitcoin as a form of payment, it should be noted that this is clearly subject to the change of mind of the relevant administrators. See, inter alios, Tesla likely to start accepting bitcoin as payment again, says Elon Musk, https://www.theguardian.com/technology/2021/jul/22/tesla-likely-to-start-accepting-bitcoin-as-payment-again-says-elon-musk.

[100] Significant reforms have been, for example, those aimed to implement the possibility of issuing bonds, in the form of debt securities, also for limited liability companies. In recent years, the measures adopted for the growth and economic development of italian economy have attempted to bring SMEs closer to medium- and long-term forms of financing that are complementary to banking loans. The introduction of the two ‘Development Decrees’ (Decree-Law No. 83 of 22 June 2012, and Decree-Law No. 179 of 18 October 2012) and the ‘Destination Italy’ Decree (Decree-Law No. 145 of 23 December 2013), aimed at stimulating growth and strengthening competitiveness for small and medium-sized enterprises, made it easier to access ‘unconventional’ financial resources, such as promissory notes (short-term loans) and ‘mini-bonds’ (medium- to long-term loans). The ‘Destinazione Italia’ decree has, inter alia, broadened the diffusion of mini-bonds on the stock market, both by widening the eligible category of persons entitled to subscribe securities, and through the introduction of tax benefits for the securities’ subscribers. A further innovative element introduced by the lawmaker seeking to broaden alternative forms of financing consisted in the introduction of so-called direct lending into our italian system. Law Decree No 185 of 14 February 2016 introduced a new ‘Chapter II-quinquies’ entitled ‘Credit AIFs’, comprising Articles 46-bis to 46-quater T.U.F., the first being entitled “Direct lending by Italian AIFs” – reiterating that «I FIA italiani possono investire in crediti, a valere sul proprio patrimonio, a favore di soggetti diversi da consumatori, nel rispetto delle norme del presente decreto e delle relative disposizioni attuative adottate ai sensi degli articoli 6, comma 1, e 39». Also in the crowdfunding field, the Italian legislator is among the forerunners in Europe. In fact, Italy is the first country in Europe that adopted specific and organic regulations on equity crowdfunding exclusively. The ‘Decreto Crescita bis’ delegated to Consob the task of regulating some specific aspects of the phenomenon aiming to create a reliable ‘environment’ to build investor confidence. Consob adopted the regulation on 26 June 2013 with Resolution No. 18592. This regulation was subsequently updated by Consob with resolution No. 19520 of 25 February 2016. At the European level, mention should be made of Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020 on European crowdfunding service providers for corporations, amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937 published in the Official Journal of the EU on 20 October 2020 so-called Crowdfunding Regulation.

[101] It is worth to mention, inter alia, the latter intervention of Bank of Italy of this issue Cipollone P., “Il ruolo dell’euro digitale come àncora del sistema dei pagamenti, ‘La Digitalizzazione degli strumenti finanziari: opportunità e rischi'”, Banca d’Italia, sede di Milano e ANSPC, Associazione Nazionale per lo Studio dei Problemi del Credito, 2021.

Authors

Leopoldo Esposito, PhD student in Law and Economics at Uninettuno

Hajdú József is Professor at the University of Szeged and Head of Department of the Law Faculty

The abstract and the paragraphs 1, 2, 3, 4 and 6 are authored by Leopoldo Esposito. Paragraph 5 ascribes to Hajdú József.