For the Italian Supreme Court, cryptocurrencies are financial products | Hogan Lovells

On 22 November 2022, the Italian Supreme Court, Criminal Section No. II issued a judgment involving a platform which issued an initial coin offering (ICO) on the basis of a whitepaper with the purpose of creating a decentralized platform of peer-to-peer logistics services. In particular, the users contributed Bitcoins to receive from the platform a certain number of tokens intended to allow the use of the services provided by the platform itself.

In short, the Supreme Court indicated that crypto-assets having certain specific features, namely:

• requiring the payment of funds by the investor;

• entailing an expectation of a financial return; and

• entailing a risk directly associated with the amount of funds invested

fall within the broad domestic category of financial products. In the case at hand, the users (i) invested capital (ii) in order to obtain a financial return, consisting of the difference between the cryptocurrencies values depending on the time of purchase and therefore (iii) assumed a risk per se related to the use of the invested funds.

In reaching this decision, the Supreme Court did, not however, (i)  analyse the whitepaper of the project, (ii) take into account the CONSOB orientation pursuant to which the mere value appreciation over time does not per se entail a classification of a cryptocurrency as investment product and (ii) provide clear definitions as the judgement contained a number of definitional uncertainties, such as the classification of virtual currency as a financial product.

Conclusion

Crypto-asset service providers will have to carefully analyse the type of activity conducted in Italy as the mere offer of crypto-assets could be interpreted by local courts as performance of investment services. In this regard, the European legal framework on crypto-assets is awaited since it could also clarify these aspects.