Regulation of Crypto Tokens and Initial Coin Offerings in the EU: De lege lata and de lege ferenda

Abstract

Much like initial public offerings produce publicly traded securities, Initial Coin Offerings (icos) produce crypto tokens tradeable on crypto exchanges. Despite an apparent need for investor protection the ico and the tokenisation phenomenon have yet to be addressed by legislative action on the EU level. The paper studies the suitability of the EU regulatory framework to capture tokenised financial instruments and utility tokens based on the views of the EU supervisory and national competent authorities. It is argued that EU regulators shall first ensure legal certainty by defining the scope of tokenised financial instruments subject to MiFID. Further, authorisation and ongoing requirements shall be adapted to address the risks posed by distributed technology and direct global access of investors to crypto markets. Finally, there is no immediate need for a bespoke EU-wide regime governing utility tokens; fragmentation of the market is a positive development providing a testing field for future supranational initiatives.