Name
Global FinTech Guide
Country _ Name
Poland
SectionTitle
ICO/token sale
Body
Companies and projects have increasingly relied on the sale of digital assets, or tokens, as a means of fundraising. These tokens generally do not grant the holders an ownership interest in the issuing company or project, but may provide governance rights, access rights or other utility. This has been conducted through public sales known as initial coin offerings (ICOs), proliferation through token generation events (TGEs) or private sales, among other mechanisms.  While showing characteristics of traditional methods of fundraising, there are a range of unanswered questions related to the legal classifications of such products. As ICOs and TGEs will usually be distributed online and internationally, there is usually no single legal framework applying to such transaction, and the legal framework of each market in which the tokens may be offered or sold needs to be considered.

Introduction

Attitude of the country towards ICOs/token sales

When the idea of ICOs came to Poland, it aroused wide interest especially among Start-ups. Because many of these ICOs have failed, with the passage of time, it seems that this idea has lost its importance or is being implemented by companies in other, more pro ICO countries.

The Financial Supervision Authority (Komisja Nadzoru Finansowego) raised the issue of crypto activities already in 2017 by publishing a position paper on investments under ICOs/ITOs and then, by subsequent communications, pointed out the risks associated with such investments. In 2020, the Financial Supervision Authority has published a position statement summarising the communications to date on the issuance and trading of cryptocurrencies and has taken the view all along that cryptocurrencies are very risky. They maintained this opinion in another warning issued in January 2021, which listed potential risks in several points. Also recently, the vice-chairman of the Financial Supervision Authority in his opinion warned against investing in cryptocurrencies. Moreover, as part of the ‘Not all that glitters is gold - invest consciously’ campaign, the KNF actively warns investors about the risks related to crypto-assets and crypto investments, providing educational materials to increase public awareness.

The Office of Competition and Consumer Protection conducts investigations against various projects that rely on tokenisation, checking collective consumer interests are being violated. For example, in 2024 a penalty of almost PLN 100.000 (approx. EUR 23.081 thousand) was assessed on Selfmaker Smart Solutions, which offered tokens for the development of another company.


Legal affairs

Presence of any explicit regulation on ICOs and the issuance of token/coins

Issuing tokens and coins is a regulated activity as of 30 June 2024 (and regarding to crypto-assets as of 31 December 2024), along with the implementation of MiCA.


MiCA provides detailed obligations regarding to trading in particular tokens, i.e. with relation to public offerings, marketing of tokens, informative obligations. On the other hand, the regulated provisions contain certain rights of investors, ensuring their protection, i.e. the right of withdrawal.

Presence of any explicit restrictions on ICOs or the issuance, distribution and/or transfer of token/coins

Indicating any restrictions on ICOs regarding the issuance, distribution and/or transfer of token/coins is only possible after examining the legal nature of the specific token/coin. The Financial Supervision Authority has only indicated certain regulatory areas into which a particular token/coin and its issuer may fall if specific conditions are met. Examples include regulations regarding payment services, trading and investments funds, and more recently – the MiCA regulation.
The legal aspects of ICOs are mainly hidden in the following issues:

  • legal qualification of the token (including as a financial instrument) - it is relevant to the legal obligations, charged to the entrepreneur issuing tokens, token trading rules or requirements towards other entities (buyers of tokens or intermediaries in their trading);
  • tax consequences of token trading (both in terms of income tax and VAT);
  • obligations of the ICO organiser (entity issuing the tokens), e.g. regarding compliance with consumer law, anti-money laundering and anti-terrorist financing regulations, banking or investment fund regulations, and its legal liability towards token holders;
  • jurisdiction and applicable law, including cross-border issues (an ICO as a process conducted on an online platform is global);
  • personal data protection in blockchain and crypto currencies - in particular in relation to the General Data Protection Regulation.

Obligations and requirements to issue token/coins

Under MiCA regulation, a license is required in order to provide services relating to tokens and other crypto-assets.

Businesses will be subject to a licensing procedure conducted before the Polish Financial Supervision Authority. Although the EU MiCA Regulation's full application is set for December 30, 2024, the Polish implementing act for the crypto-asset market, which will specify the obligation to obtain a CASP (Crypto-Asset Service Provider) license and enable the Polish Financial Supervision Authority to accept and process applications, is still in the legislative process. The procedure would be a complex process of examination of the legal situation of the company wishing to provide crypto-asset services, with particular reference to its corporate situation (members of its bodies, their competences with regard to crypto-assets, tokens, crypto-currencies, its shareholders and share capital requirements) and other factors mentioned in MiCA that will be subject to examination by the Financial Supervisory Authority. This procedure will in many respects be parallel to the procedure carried out in the context of obtaining an authorization for providing payment services.

On the other hand, offering and issuing tokens and/or coins are subject to regulation, as indicated in MiCA. Regulated areas are mainly, the process of offering, marketing of the tokens and/or coins, informative obligations and certain investor protection measures – as the right to withdraw from the transaction regarding crypto-assets. MiCA regulation indicates liability of the offeror should he violate these provisions.

The regulatory requirements differ for each token. Firstly, with regard to crypto-assets, which regulation is in force since 31 December 2024, an offering must be conducted, subject to the requirements indicated in MiCA. There would be an “information document” containing all necessary information, which must be notified to the Polish Financial Supervisory Authority, and later published. These regulations correspond to the process of a public offering, however, a prospectus disclosure will not be needed, as crypto-assets are not defined as “securities”, adhering to the wording of MiCA.

Secondly, with regard to tokens related to assets (‘ART’), an authorization from the Polish Financial Supervision Authority is required in order to conduct a public offering of securities. Another requirement is that only ART issuers will be able to make a public offering of them. Accordingly, an informative document needs to be prepared by the offeror. The offeror could be either a legal person (or other business operating in the EU), or a credit institution, if it meets the MiCA requirements.

Thirdly, with regard to e-money tokens (‘EMT’), only entities being their issuers, and licensed as credit institutions or electronic money institutions, which have prepared an informative document regarding the offered tokens, and notified the Polish Financial Supervision Authority of it, may conduct a public offering. Issuers cannot impose interest in respect of EMT.

Classification of token/coins in the jurisdiction

Before MiCA, tokenization has not been duly regulated. Therefore, for security reasons, some companies in Poland were reaching for a positive interpretation from the Financial Supervision Authority that the proposed tokenization was not subject to supervision.
After 30 June 2024 (regarding ART and EMT), and accordingly, 31 December 2024 (regarding crypto-assets), tokens were regulated and introduced into Polish law with the implementation of MiCA. The Crypto-assets Act, which will further specify national procedures and KNF's supervisory powers, is currently in the process of implementation. As a general rule, MiCA has aimed at regulating the broadest possible scope of those crypto-assets, which are currently not regulated otherwise in financial markets regulations.
Therefore, the provisions of MiCA define in general the following types of tokens:
  • crypto-asset - a digital representation of a value or right that can be transferred and stored electronically using distributed ledger technology or similar technology;
  • Asset-Referenced Token (‘ART’) - a type of cryptocurrency that is not an e-money token and that is intended to maintain a stable value by being linked to another value or right or a combination thereof, including at least one official currency;
  • an Electronic Money Token or e-money (‘EMT’) - a type of cryptocurrency that is intended to maintain a stable value by being linked to a single official currency.
  • Other than the mentioned above, we can identify the following:
  • Utility tokens (‘UT’) – a type of crypto-assets, which, according to the regulations is aimed to grant digital access to certain goods or services; it must be available in distributed registry technology and also provided by the issuer of that token. As an example, the Brave browser-related BAT token (Basic Attention Token) can be mentioned here;
  • Significant electronic money token (‘SEMT’) – a type of EMT, which are significant from their definition;
  • Significant asset-referenced token (‘SART’) – a type of ART, which are significant from their definition.
The provisions regarding ART and EMT  have applied since 30 June 2024 and the others regarding crypto-assets  have been in force since 30 December 2024.

Presence of a duty to publish a prospectus bevor offering token/coins to investors

As indicated in MiCA (and explained above), a prospectus is not be required with regard to public offering of tokens, however the regulation obliges for issuers and offerors to prepare and submit to the Polish Financial Supervision Authority an informative document regarding the offered tokens.
Regarding ART – it must be duly noticed that a license obtained from the Financial Supervision Authority will be required in order to conduct a public offering of tokens related to assets.

Presence of AML/KYC requirements that are needed to be fulfilled regarding (i) the initial issuance of token/coins and (ii) any following transfer of token/coins to third parties

If a company engaged in token-related services can be classified as an obliged institution under the AML Act (which requires an analysis taking into account the exact nature of the services offered), it will be required to apply financial security measures. Obligated institutions are, for example, entities engaged in the business of providing exchange services between virtual currencies and means of payment or exchange between virtual currencies.

Financial security measures include identifying the customer and verifying the customer's identity; identifying the beneficial owner and taking reasonable steps to verify the customer's identity and establish ownership and control, assessing the business relationship and, as appropriate, obtaining information about its purpose and intended nature, and monitoring the customer's business relationship on an ongoing basis.

Additional comments regarding (i) the legal situation for ICOs/token/coins and (ii) any following transfer of token/coins to third parties

N/A




Economic conditions

Market size for ICOs/token sales and existence of any previous regulated ICO/token sales in the jurisdiction

The ICO market in Poland is still undeveloped and it is difficult to find detailed information about it. One of the record-breaking Polish ICOs is Golem Network, which raised $8.6 million.


Additional comments regarding the economic situation for ICOs/token sales or what companies must be aware of in this business area

N/A

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