What are cryptocurrencies in summary?
The widespread use of cryptocurrencies is now universally known. They are true “digital assets” that are traded on dedicated platforms without the involvement of intermediaries.
These “entities” are revolutionizing the world of transactions as they can be easily transferred, even without a regulated central system. In essence, they can be referred to as “virtual currencies” with which goods or services can be exchanged.
It is interesting to note that the credibility and popularity of these currencies increase when a community of users recognizes their value. Essentially, the reference to the concept of “currency” allows for an initial assimilation in terms of a “medium of payment.”
Among the most famous cryptocurrencies is certainly Bitcoin, but there are others that have gained popularity. However, some of these have not been considered reliable in the medium term, as will be discussed later.
How are assignments made to companies (formation and capital increase)?
Shareholders and/or those entitled to become part of a company can subscribe to capital shares both during the formation of the company and, if approved by the relevant assembly, during a capital increase through non-monetary contributions. The latter includes all contributions other than cash.
In both cases, legal procedures are provided by law to enable administrators to verify the actual value of the contribution made, ensuring that it guarantees at least the subscribed capital and avoiding risks of undercapitalization.
In the case of non-monetary contributions (both during formation and in the case of a free increase), a specific valuation procedure is required for capital companies. Clarifying that non-monetary contributions encompass “everything that is not represented by money,” there is doubt as to whether cryptocurrencies should be subject to the regulations governing non-monetary contributions or, conversely, whether they can already be classified as “money” and therefore exempt from such regulations.
Position of doctrine and jurisprudence
The vast majority of scholars have considered Bitcoin as an entity that cannot be classified as money. This implies that the application of regulations regarding non-monetary contributions is essential. It is emphasized in this regard that the lack of a central authority that recognizes the cryptocurrency as a “currency” inherently denies its qualification as “money”.
Even the European Central Bank has so far classified virtual currencies simply as “means of exchange” rather than means of payment.
According to other voices (albeit isolated), there are no impediments to considering cryptocurrencies as equivalent to money. The limited case law that has dealt with the assignment of cryptocurrencies, in a case of a capital increase of a joint-stock company, has argued that the rules on non-monetary contributions should not apply to such contributions.
However, at the same time, due to the lack of a stable and verifiable system, similar to other legally recognized currencies, it is not possible to determine a certain euro equivalent value, making it impossible to rely on expert valuation. It should be noted, however, that the case in question involved a cryptocurrency that turned out to be a scam.
Based on the above, it is not currently possible to establish a definite operative approach:
- Certainly, framing cryptocurrencies as non-monetary contributions would be a more cautious solution because it would allow for a preliminary filter in which value criteria leading to a specific valuation could be identified.
- However, case law, albeit in relation to a very particular and controversial case, highlights how the extreme difficulty of valuation does not allow for a certain value to be attributed. Consequently, it does not enable a valuation procedure that is useful for the purposes at hand. The values of cryptocurrencies are quite volatile and cannot be evaluated accurately.
Therefore, it is not possible to reach a reliable conclusion at this time. Undoubtedly, the ongoing development of regulations on this subject will hopefully lead to a legally valid operational solution in the near future.