Appeal to the Supreme Court on cryptocurrencies
The Court of Cassation intervenes in the criminal proceedings regarding the purchase and sale of bitcoin with two rulings dated September 17, 2020.
The sentences have been described by some commentators as “historic,” but is that really the case?
It doesn't seem like it, and let's see why.
First of all, some points need to be clarified.
Table of Contents
The bitcoingo case
The Court of Cassation intervenes as a precautionary measure (and not at the end of the ordinary trial procedure on the merits) as there had been some bitcoin sales through the network localbitcoin.com and then through the bitcoingo website, which would have led to the commission of various crimes, from Article 166 of the Consolidated Law on Finance, which provides for so-called financial abuse, to money laundering.
The Supreme Court had been called upon to decide on the seizure of the sums, approximately two hundred thousand euros, which had been found to be connected to the complex operation.
Incidentally, the Court then annulled the seizure due to the lack of adequate justification for the seizure by the Review Court, which had endorsed the precautionary measure, on the requirement of disproportion between the income declared by the appellant and the sums found.
Which obviously has nothing to do with the legal nature of bitcoin.
The key point
The point of interest here concerns the qualification of currency exchange portals for the purposes of their inclusion among the entities supervised by the Stock Exchange Control Authority and the potential commission of financial crimes by those who exchange cryptocurrencies.
The Court of Cassation appears to have included cryptocurrency trading among financial instruments.
The Court of Cassation's legal assessment of cryptocurrencies as financial instruments or services, if separated from the specific case, would have been erroneous.
As rightly recalled from the lawyer of the appellant in cassation "the virtual currency exchange activity had been defined by Legislative Decree 90/17, outlining a specific status for currency exchanges and therefore removing them from the scope of application of the legislation on financial instruments since virtual currencies were not considered investment products, but means of payment (Article 1 paragraph 2 TEU provides that "payment instruments are not financial instruments");
Appeal to the Supreme Court on cryptocurrencies
English 
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