THE SCHEME OF THE LEGISLATIVE DECREE FOR ADAPTATION TO THE #MiCA HAS BEEN PUBLISHED: NEW CASE OF ABUSE AND MISALIGNMENT OF SANCTIONS ON MARKET ABUSE.

Through articles 18 and 19 of the European Delegation Law, the Government has been mandated to adapt national legislation to the provisions of the “MiCAR” (Markets in Crypto-Assets) Regulation and the “TFR” (Tranfer Funds Regulation). Subsequently, the MEF published the draft legislative decree of adaptation, simultaneously opening the public consultation which will close on 22 March 2024. #illegal practices #financialproducts As regards the MiCA Regulation, the draft legislative decree follows the CONSOB strategic plan published in December 2023 and, in art. 39, coordinates the discipline of the aforementioned regulation with the TUF legislation, providing for the non-application of the legislation concerning “financial products” in the event that the MiCA is applied. At the same time, art. 30 introduces an independent type of illegal activity providing for imprisonment from 6 months to 4 years (therefore much milder than the 8 years of maximum law provided for by art. 166 TUF) for issuing entities and for CASPs (Crypto-Asset Service Provider) who, respectively, issue or carry out the activity without the relevant authorization issued by the competent Authority. #marketabuses #financialinstruments With reference, however, to market abuse, despite the desirable introduction of ad hoc criminal cases concerning crypto-assets, the draft legislative decree only provides for administrative sanctions. From this derives the permanence of the sanctioning misalignment given the applicability, in episodes of market manipulation, of the art. 2637 c.c. if the crypto-asset is classified as a “financial instrument” or, otherwise, only the administrative sanction provided for by the MiCA. Instead, as regards the phenomenon of insider trading, there would be criminal uncovering as only the administrative sanction of the MiCA would apply, since the law does not provide for any criminal offenses relating to unlisted financial instruments.