Crypto-assets in the EU and Polish regulatory framework regarding financial instruments

Abstract

Crypto-assets are private, convertible, digital tokens that are managed in a decentralized way using technology called distributed ledger technology (DLT). The term is not limited only to decentralized virtual currencies, but also commodities, digital goods and services. As such they can be considered an addition to a financial investment portfolio, being an alternative to traditional instruments, such as stocks, bonds or cash. However, wide use of crypto-assets is being currently hampered by lack of regulations followed by uncertainties as to the legal qualification of crypto-assets and consequences of investments in such instruments. From that perspective, it seems crucial to answer a question whether crypto-assets can be considered financial instruments in the light of the current Directive on Markets in Financial Instruments (so called MiFID II) at the EU level and national acts that implemented relevant provisions of MiFID II (in Poland it is the Act on Trading in Financial Instruments). Since neither the EU nor Polish legislator provided a clear answer to that question, some indications can be found only in official statements of regulatory authorities and the doctrine, which however are not always consistent with each other. Furthermore, the Member States used different legislative techniques in the process of implementing MiFID II so the nomenclature can differ. The article discusses the diverse approaches to crypto-assets in the interpretation of the EU and Polish legislation concerning financial instruments as well as implications of such differences.