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Crypto-assets: Commodities under European financial markets law?
Journal of Financial Compliance,
2
(3),
199-206
(2019)
Abstract
This paper sheds light on the legal nature of crypto- assets in capital markets law. There is currently no generally accepted legal definition of the terms ‘crypto–assets’ or ‘cryptocurrency’ aside from the term ‘virtual currency’ in the 5th Anti-Money Laundering Directive. While it is clear that cryptoassets performing payment functionalities are not considered legal tender in the sense of government sanctioned currencies, the question remains whether or not crypto-assets should be considered goods in the context of the European fundamental freedoms and/or commodities in the sense of European capital markets law. This classification, however, bears significant ramifications in various legal areas that are explored in this paper. It will be shown that crypto-assets are goods subject to the freedom of movement of goods guaranteed by articles 28 to 37 TFEU (Treaty on the Functioning of the European Union). On the other hand the authors propose that crypto-assets should not be considered to fall within the definition of commodities as used in capital markets law (eg, MIFID [Markets in Financial Instruments Directive] I and II, Benchmark-Regulation, etc) and are therefore not subject to the regulatory consequences of this qualification, such as potential regulation of market places as commodity exchanges or regulatory reporting obligations related to commodity derivatives.
Keywords: crypto-asset; cryptocurrency; freedom of movement of goods; freedom of movement of capital; commodity; MIFID (Markets in Financial Instruments Directive)
The full article is available to subscribers to the journal.
Author's Biography
Ralph Rirsch is a supervisor at the Austrian FMA in the Department for Integrated Conduct Supervision of Banks. He is specialised in the PRIIPs Regulation (on key information documents for packaged retail and insurance-based investment products) and new technologies. Before his time at the FMA, he worked as a consultant in the Austrian banking sector with a focus on regulatory issues (eg markets in financial instruments directive (MiFID II), payment services directive (PSD2)), large-scale IT implementations and database management. Additionally, he was active as a freelance systemic consultant for small and medium enterprises specialised in group dynamics. His academic background is in law (University of Vienna) and international business administration (Vienna University of Economics and Business).
Stefan Tomanek is a legal expert in the Department for Prudential Supervision Asset Management, Prospectus, Consumer Information, at the Austrian Financial Market Authority (FMA). While the supervision of undertakings for collective investments in transferable securities (UCITS) and alternative investment funds (AIFs) is the main focus of his work, he is also heavily involved in the area of crypto assets and related business models. In this context, he is also a delegate in international committees as well as The European Securities and Markets Authority (ESMA) committees. Prior to his work at the FMA, he gained valuable experience in the Legal & Compliance Department of a large Austrian bank. He holds a master’s degree in law from the University of Vienna.
