From 14 December, the new provisions contained in Legislative Decree 8.11.2021 no. 184, implementing Directive (EU) 2019/713 on fraud and counterfeiting of non-cash means of payment, come into force. Some of these provisions have a direct relevance on the world of cryptocurrencies (given that non-cash means of payment are discussed), but it is worth clarifying at once that the scope of the decree is essentially criminal.
The “non-cash means of payment”
Therefore, for example, Art. 1 introduces or re-proposes certain definitions which could also be useful to qualify cryptocurrencies legally in a more specific way, but the incipit of the regulation is clear in establishing that such definitions operate “to the effects of the criminal law”.
In this perspective, the introduction of the concept of “non-cash payment means” is very useful, which in letter a), is defined as “a protected immaterial or material device, object or record, or a combination of them, different from legal tender, which, alone or together with a procedure or a series of procedures, allows the holder or user to transfer money or monetary value, also through digital means of exchange”. Similarly, so is the definition of “digital medium of exchange”, which refers to both “any electronic currency” (as defined by law) and virtual currency.
The definition of cryptocurrencies in the fraud law
As to the concept of virtual currency, it is re-proposed in the definition contained in letter d) in terms analogous to those already proposed in the anti-money laundering legislation. Therefore, it is defined as a representation of digital value not issued or guaranteed by central banks or public bodies, not necessarily linked to a legally established currency, accepted by natural or legal persons as a means of exchange.
The definition, however, bears an important difference in that it expressly states that virtual currency “does not have the legal status of currency or money”.
If this last definition were to be unequivocally applicable also in the fiscal sphere, this would change quite a few things.
The argument of the Italian tax authorities that capital gains from cryptocurrencies constitute taxable income is based on the assumption that cryptocurrencies should be treated as foreign currencies, and this assumption is increasingly less sustainable if it is recognized that virtual currencies do not have the legal status of currency.
The point, however, is that, as has been said, the definitions contained in Article 1 of Legislative Decree 184/2021, by express provision of the law, are dictated solely for criminal purposes. Not that this necessarily constitutes an absolute and insurmountable barrier: to give an example, in fact, where it has suited the tax authorities, provisions explicitly dictated for the sole purposes of the anti-money laundering regulations have been easily transferred, by osmosis of interpretation, also to the fiscal sphere.
This new piece, therefore, could play a significant role in the composition of the complex puzzle of the regulatory framework applicable to cryptocurrencies.
Leaving the definitions aside, the central point of the decree concerns the introduction of specific offences related to the use of non-cash means of payment and its inclusion in the list of offences from which the administrative liability of companies and entities derives, as regulated by Legislative Decree 231/2001.
The contents of the law
The decree significantly amends Article 493-ter of the Criminal Code, widening the scope of the undue use and falsification of non-cash payment instruments, and introduces ex novo a new type of offence with Article 493-quater, aimed at striking the possession and dissemination of equipment, devices or computer programs functional to this type of undue use or falsification.
In addition, Article 25-octies of Legislative Decree no. 231/2001 is extensively amended, with a tightening of the administrative sanctions against the company or body.
Now, this new legislation responds to the need to establish rules adapted to the rapid evolution of technologies and methods in the world of means of payment, which also implies a corresponding evolution of fraud and criminal conduct.
On the other hand, the effort to include among criminal conducts also those involving the fraudulent use of cryptocurrencies, or virtual currencies, is in any case a positive sign, since it is a further step in the progressive clearance of these digital assets also in the legal world.
It remains to be seen whether this will also lead to an effective understanding of the phenomenon, or whether the ultimate aim will only be to channel it and keep it under control.