cryptoasset

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Last March, a financial technology company flooded Madrid with advertising to invest in cryptocurrencies such as Bitcoin through its platform. This type of asset is considered high risk due to its volatility, which prompted the Spanish Securities and Exchange Commission (CNMV) to initiate the procedure for the regulation of advertising by these companies.

The CNMV has launched a public consultation until April 16, 2021, to gather opinions on the Circular on cryptoasset advertising aimed at regulating commercial communications of cryptocurrency investment. Comments sent by email to fintech@cnmv.es will be published after the end of the consultation period (unless expressly requested otherwise).

The CNMV is acting based on the second final provision of Royal Decree-Law 5/2021, of March 12, on extraordinary measures to support business solvency in response to the COVID-19 pandemic. This provision, which amends article 240bis of Royal Legislative Decree 4/2015, of October 23, consolidating the Securities Market Act, grants the CNMV the task of administrative monitoring of cryptoasset and other investment advertising.

For this purpose, the CNMV must prepare a Circular defining its own scope and powers. Among the main objectives of the financial regulator is to develop and implement the rules, principles and criteria governing cryptoasset advertising. In particular, it will define the objective and subjective scope of application, specify the advertising activities subject to prior administrative authorization, and establish tools and procedures to monitor cryptoasset advertising. 

This draft Circular will merely set the advertising requirements for offers of these assets to potential investors in Spain. Some professional activities will be excluded (“White papers,” professional investment analysis and recommendations, as well as other professional offers), along with non-fungible assets and simple means of payment.

Regarding mass campaigns aimed at the general public, the CNMV seems in favor of requiring prior administrative authorization or establishing a prior communication regime. In any event, advertising must be clear, balanced, impartial and not misleading. This is of particular importance when a campaign refers to historical returns or cost information to attract potential investors. Moreover, these campaigns might be required to include a notice on the risk of investing in cryptoassets in their advertising communications—either in standardized or abbreviated form.

Finally, the CNMV is considering an advertising monitoring regime specifying among others, the procedures and deadlines for: (i) gathering information from the obligated parties; (ii) requiring cessation or ratification of advertising activities; and (iii) imposing sanctions when necessary. Given the potential impact of these campaigns, the CNMV proposes that the time periods to act and collect information should be limited—in principle, not more than 3 days (although this could vary depending on the advertising).

We are moving towards a clearer regulatory framework for cryptoassets and cryptocurrencies, which fosters acceptance of these assets. Establishing a legally certain regulatory framework is essential for a future in which cryptocurrencies will be part of our daily lives and we will benefit from the blockchain revolution.

Authors: Octavi Oliu y Mònica Ferrer

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