The Legislative Decree no. 90 of May 25, 2017, published in the Italian Official Gazette on 19 June 2017 (the Decree no. 90/2017), amended the legislative decrees no. 231 dated 21 November 2007 (the Decree no. 231, i.e. the main Italian anti-money laundering regulation), implementing the Directive (EU) 2015/849 (IV AML Directive) on "prevention of the use of the financial system for money laundering or terrorist financing" as well as the Regulation (EU) 2015/847 on "information on accompanying transfers of fund".
The implementation of the IV AML Directive implied significant changes to the regulatory framework set forth by the Decree 231, which will require the relevant addressees to carry out a detailed assessment of the policies and procedures currently adopted.
Virtual currency providers
The Decree no. 90/2017 sets forth specific rules with reference to providers operating in "virtual currencies", meaning any "digital representation of value, not issued by a central bank or by a public authority, not necessarily linked to a currency with legal tender, used as a means of exchange for the purchase of goods and services and transferred, stored and negotiated electronically".
In detail, Decree no. 231 now qualifies as "other non-financial operators" the virtual currency service providers, defined as "natural or legal persons providing to third parties, on a professional basis, services functional to use, exchange, store virtual currencies as well as to convert them in or from currencies with legal tender". Such providers are required to fulfil specific anti-money laundering obligations with regard to virtual currency conversion activities.
The Decree requires the virtual currency service providers to be registered in a special section of the register held by the so called "Agents and Credit Brokers Body" (O.A.M. - Organismo degli Agenti e dei Mediatori Creditizi), which is responsible for the management of the register of financial agents and credit brokers, in accordance with Article 128-undecies of the Consolidated Banking Act.
This provision shall be implemented by a decree to be issued by the Italian Minister of Economy and Finance, detailing the reporting duties of the virtual currency service providers with regard to the operations carried out in Italy. Such reporting must be considered as an essential condition for the lawful performance of the relevant activity by the aforementioned providers.
Draft of the Ministerial Decree
On 2 February 2018, the Ministry of Economy and Finance published the draft of the ministerial decree in public consultation, on the Treasury Department website.
The text, on which it is possible to send observations and contributions until next February 16, provides that anyone who is interested in performing the activity of a virtual currency service provider within Italy, has an obligation of communication with the Ministry of Economics and Finance
Returning to the definition introduced by Decree no. 90/2017, the provision in consultation clarifies that the virtual currency, even if “used as a means of exchange for the purchase of goods and services” (…) “is not issued by a central bank or by a public authority and is not necessarily linked to a currency with legal tender”.
The draft of the decree defines the methods by which virtual currency service providers are required to notify the Ministry of Economy and Finance of their operations.
Commercial operators who accept virtual currencies as payment for any performance relating to goods, services or other utilities, are also bound by the obligation of communication. The initiative aims to first, achieve a systematic survey of the phenomenon starting from the numerical consistency of operators of the sector that, when fully operational, must register in a special register held by the "Agents and Credit Brokers Body" (O.A.M. - Organismo degli Agenti e dei Mediatori Creditizi), in order to be able to carry out their activity within the national territory.
The prevision of obligations and precautions, at the expense of virtual currency service providers, is consistent with the more stringent regulations dictated in the V AML Directive, soon to be published in the Official Journal of the European Community, which Italy had in fact anticipated, envisaging, as early as 4 July 2017 (date of entry into force of Decree no. 90/2017), stricter regulations on the prevention of financial crimes