The role of private and public regulation in the case study of crypto-assets: The Italian move towards participatory regulation

With the Digital Financial package (MiCA, DLT Pilot, and DORA, later on complemented by the DAC8 proposal) the European Union seeks to establish an appropriate legal framework for crypto-assets showing a financial nature. The package represents a first attempt to regulate a complex and emerging phenomenon, characterised by significant trade-offs. Unsurprisingly, in this early stage of the law-making process several relevant aspects of the crypto environment remain unaddressed, such as pure DeFI models, DAOs, and NFTs. Such regulatory gap is to a large extent attributable to the difficulty of addressing technologically complex issues through command-and-control top-down legislation. The improvements delivered by the Better Regulation Agenda are not enough to solve this conundrum. In this context, the Communication by the Bank of Italy on Decentralised Technology in Finance and Crypto-assets and its first move, the smart-contract MoU, provide an interesting case study to discuss the potential of ‘participatory regulation.’ This experimental form of regulation tries to get the most out of co-regulation, self-regulation, and command-and-control, combining their characters with the view of reconciling the technology neutrality principle with technology-based regulation. Participatory regulation aims to bridge the public and private sector in order to strike a right balance between flexibility and legal certainty, without stifling innovation.