The issue relating to the sale of Bitcoins is quite complex. This is because it is not possible to answer the question unambiguously: “Is selling Bitcoin on the internet a crime, or not?” The reason for the difficulty in providing a decisive answer lies in the fact that there are cases in which the criminal offense occurs and others do not. Therefore, it is necessary to make some clarifications and indicate the conditions under which the offense is committed. In particular, in the opinion of the Supreme Court, selling Bitcoin on an Internet site is a crime if the rules on financial intermediation are not respected. The offense that would take place, in the present case, would be that of abusive financial intermediation. This is what emerged from the sentence of Supreme Court, n. 26807/2020.
The reasons for the decision of the Supreme Court
For the Supreme Court, for the purposes of excluding the crime, the fact that cryptocurrencies are considered payment instruments would not be relevant. It notes, instead, that their sale is advertised as a form of investment, as such subject to controls by the CONSOB. In fact, the Ermellini rejected the defense’s reasoning that since virtual currencies are not financial instruments, they do not have to comply with the relevant legislation. However, the Court emphasizes that, in the present case, information was given on the site that was suitable for enabling savers to assess whether or not to join the initiative. Hence, it is clear that the sale of bitcoins was being advertised as an investment proposition.
It follows that such an activity is subject to the obligations referred to to articles 91 and following TUF, whose omission integrates the existence of the crime described. In this case, art. 91 provides that: “the CONSOB exercises its powers expected..having regard to investor protection as well as the efficiency and transparency of the corporate control and capital market. ” In conclusion, the question of whether selling bitcoins on the internet is a crime or not, must be answered yes, if they are proposed as a form of investment. In this case, the sale is subject to a special authorization and control by CONSOB, which deals with the protection of investors in the financial market.
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