Financial Instruments vs. Crypto Assets : Italian Law Perspective

Abstract

This paper’s aim is to provide a clear distinction in the italian law between crypto-assets regulated by regulation UE 2023/1114 (MiCAR) and financial instruments regulated by d.lgs. 58/1998 (TUF). First of all the paper analyses italian case law, which has mainly classified crypto-assets within the financial products general category, that includes also financial instruments. However, after MiCAR’S entry into force, that applies only to crypto-assets other than financial instruments, the distinction between the two categories has become relevant in order to understand regulation 2023/1114 field of application. After a critical assessment of some scholars opinions, which identify the different function as the dividing line between financial instruments and crypto-assets, the contribution provides that MiCAR applies also to financial crypto-assets that don’t have all financial instruments features. Believing that MiCAR provides less investor protection than the previous italian law, the contribution indicates some public enforcement’s tools in order to solve this issue.