OAM: guidelines for registration in the register are ready

In a press release issued in recent days, the OAM, Organismo degli Agenti e Mediatori finanziari (Body of Financial Agents and Brokers), has announced that it has prepared guidelines for registration in the special section of the register, dedicated to exchanges (in fact to all operators who provide services related to the exchange of virtual currencies) and operators who provide digital portfolio services. 

OAM: registry subscription

The documents put online by the OAM are two documents that essentially contain the practical instructions to register on the OAM portal, i.e. to open an “account” and then to submit the request for the actual registration, through a notice of operation on Italian territory.

However, beware: the special section of the register is not yet operational and, according to the press releases, it will be by next 18 May. 

In recent weeks, the OAM had initiated a series of informal discussions, also with operators in the sector and insiders, to find a way to give a reasonable implementation to the set of provisions that have imposed the obligation of registration, and therefore the establishment of the special section of the register. 

For example, during a recent event on “Cryptocurrencies, smart contracts and NFTs” organized by AFICento, Assoholding and the magazine AML&Fintech, the representatives of the OAM speaking at the event felt they could clarify that miners would not be required to register, only virtual asset service providers (VASPs), i.e. service providers of virtual currencies (services related to the use, exchange, storage and conversion of virtual currencies) and digital wallet service providers, would be required to register.

But the point is that, despite the best intentions of the Organism, there is little that can be done, intervening at the level of mere implementation, to render linear a normative system that already at the legislative and regulatory level presents significant inconsistencies also with the European normative framework to which it would like to give transposition.

As has already been pointed out in previous articles in this magazine, one of the structural problems of the system, as it emerges from the combination of the legislative provisions introduced and/or amended by Legislative Decrees 90/2017 and 125/2019, with those of the subsequent implementing decree of the MEF of 13 January 2022, published in the Italian Gazzetta Ufficiale of 17 February 2022, lies in an unreasonable expansion of the perimeter of those who are indicated as being obliged to register to perform their respective activities on Italian territory.

This perimeter is not only wider than that expressly provided for by the European anti-money laundering directives (the Fourth and Fifth), but also has excessively indefinite boundaries.

The distinction with mining activities

The final result is that there is a multitude of operators who carry out activities which in substance do not take the form of any intermediation and which, nevertheless, find themselves falling within the scope of the obligation to register. 

Among these, if one sticks to the letter of the provisions, there are those who carry out consultancy activities (such as lawyers, accountants and others), but also the miners themselves.

In fact, in spite of the opinions of the OAM, in Art. 1, para 2, letter b) of the decree of the MEF, among the providers of services related to the use of virtual currencies (i.e. the VASPs) are explicitly indicated the operators that supply services of issuance of virtual currencies.

However, this is not the only problem: the MEF decree is packaged in such a way as to explicitly provide for the obligation of registration for operators permanently resident in Italy and for operators based in other EU Member States. The latter are required to open a permanent establishment in Italy if they wish to operate in our territory.

There is no mention of operators based in third countries. The rule, however, maintains the general obligation to obtain registration in the register for anyone wishing to exercise in Italy any of the activities falling within this broad and indefinite scope. 

In order to be included in the register, one must have at least a permanent establishment in Italy. This would seem to entail an implicit obligation to register even operators based in non-EU countries.

This misalignment, which is entirely internal to Italian law, is now also reflected slavishly in the guidelines issued by the OAM. Examination of the documents explaining the procedures for registration on the portal of the Body and the subsequent submission of the application for registration, in fact, it is clear that the procedures are structured exclusively for subjects resident in Italy and for those resident in EU countries.

The problems of the decree

Hence the problem. What will happen to operators with offices in third countries? Will they be able to operate freely? Will they suffer the obscuring of portals because they are not registered? Will they be able to register, subject to the opening of a permanent establishment or subsidiary with registered office in Italy?

These inconsistencies, in the immediate aftermath of the publication of the MEF decree, had aroused the ire of many foreign operators, who had declared themselves determined to challenge the decree before the TAR. 

However, it was the proverbial French charge and Spanish retreat. By now, the time limit for challenging the decree directly has expired, and there is no news of any appeal being filed.  

In the meantime, the choice of many of the foreign operators has been to not care about the Italian market, perceived as negligible compared to the volumes handled globally. Others, on the other hand, have decided to adapt, organizing themselves to proceed with registration, when the register will be definitively prepared.

How will the Italian panorama of intermediation and digital portfolio service operators emerge when the system is fully operational? Will it be the umpteenth productive sector decimated by a clumsy regulatory production? Or will the brave entrepreneurs of the crypto world find a way to adapt to the new constraints by applying the Italian art of getting by?

We will understand after 18 May.