Abstract

With Regulation (EU) 2023/1114 (so-called MICA Regulation), implemented by Legislative Decree no. 129 of 5 September 2024, the EU legislator has established harmonized rules for the issuance, public offering and provision of services relating to crypto-assets. In addition to e-money tokens (so-called EMT), suitable for performing a payment function, and asset referenced tokens (so-called ART), whose payment or investment function depends on the characteristics of the individual token, the Regulation has provided for a residual category of crypto-assets (so-called other than) which are characterized by having no underlying asset. Within the general definition of crypto-assets, it is possible to include bitcoins, which are characterized by being naturally decentralized, without an issuer, without an underlying asset and without intrinsic value as they only have external value. Although exempt from much of the discipline dictated by the Mica Regulation, providers of services relating to the circulation of bitcoins are, however, subject to the conduct and information obligations provided for by the MICA Regulation for all providers of crypto-activity services. From a qualifying perspective, the majority doctrine attributes to bitcoin the nature of a legal good or financial product, subjecting the related circulatory operations to the discipline provided for by the civil code for the sale (or for the barter) and to the discipline provided for by the TUF for financial products. The contribution, retracing the arguments that deny any monetary function to bitcoins, aims to critically examine the recognition of a cause of exchange or a financial cause in the circulatory operations of bitcoins and ask whether the concrete characteristics of the crypto-activity (absence of intrinsic value and calculability of the related value fluctuations) do not support the recognition of a speculative cause. From this conclusion would derive the application of the regulatory status provided by the civil code for betting, especially in the presence of bitcoin circulation operations that occur without the intermediation of authorized providers of crypto-activity services, i.e. in a totally decentralized manner.