MiCA Regulation: preliminary considerations on anti-money laundering

MiCA Regulation: preliminary considerations on anti-money laundering

MiCA Regulation: preliminary considerations on anti-money laundering

We provide some preliminary anti-money laundering insights into the EU Regulation 2023/1114 (MiCA) on crypto-assets published in the Official Journal of the European Union on 9 June 2023.

THE AIMS OF THE MiCA REGULATION

As already brought to your attention in Alert No. 22/2023, the MiCA Regulation declaredly aims to “ensure that the Union’s financial services legislative acts are adequate for the digital age and contribute to creating an economy prepared for the challenges of the future and which serves people, also by enabling the use of innovative technologies“.

THE ANTI-MONEY LAUNDERING IMPLICATIONS OF THE REGULATION

The Regulation is intended to provide an initial regulation of the cryptocurrency sector; however, the EU legislator also takes care to warn about the misuse of crypto assets by organized crime: “entities offering services falling within the scope of this Regulation should also comply with the applicable Union rules on the fight against money laundering and terrorist financing, which supplement international standards” (Recital 16).

This is consistent with what has already been stated by the EU legislator in the Anti-Money Laundering Directives IV and V (respectively, EU Dir. 2015/849 and EU Dir. 2018/843), which have progressively extended the parties subject to the obligations (at first, only the so-called “exchangers” and, later, also the wallet providers) of the anti-money laundering obligations and identification requirements under the AML legislation: in order to trace and identify those who engage in conversions of traditional currency into virtual currency (and vice versa) and those who lie behind the “shield” of digital wallets, thus allowing virtual currencies to be moved under pseudonyms or in complete anonymity.

Pursuant to the broad formulations contained in Legislative Decree No. 231 of 2007 with respect to the definition of “virtual currency” (Article 1(2)(qq)) and the definition of “providers of services related to the use of virtual currency” (Article 1(2)(ff)), the parties falling within the scope of application of the MiCA Regulation can already be included among the beneficiaries of the anti-money laundering legislation, especially following the broadening of the latter definition made in the context of the Recommendations of the Financial Action Task Force (“FATF”) dating back to October 2018, according to which providers of virtual asset services are those who perform the following activities:

  • exchange between virtual assets and legal tender currencies;
  • exchange between one or more forms of virtual asset;
  • transfer of virtual assets;
  • safekeeping and/or administration of virtual assets or instruments enabling control of virtual assets;
  • participation in and provision of financial services relating to the offer and/or sale of virtual assets by an issuer.

Nonetheless, the intention of the EU legislator to implement an adequate system for the prevention of money laundering and terrorist financing realized with the assistance of crypto assets, also with a view to creating and supporting an economy in line with the available technological tools, clearly transpires.

For this purpose, it is not to be excluded that additional entities operating in the crypto goods and services sector may be included in the list of beneficiaries of specific anti-money laundering requirements tailored to the peculiarities of operators.

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We remain at your disposal for any clarification.