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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
In Spain, there is no specific regulation on tokens as units of value. However, if the tokens are massively offered as an investment object, mediated by advertising activity, they will be subject to the control of the CNMV.
It is usual that only experts enter into ICOs and token issuance. However, as explained in paragraph f) above, Bank of Spain and the CNMV have in the joint communicates advised against ICOs and cryptocurrencies.
Legal affairs
Presence of any explicit regulation on ICOs and the issuance of token/coins
As of 30 December 2024, the issuance of crypto-assets in Spain is regulated under Regulation (EU) 2023/1114 on Markets in Crypto-Assets (MiCA). The applicable regime depends on the classification of the token:
If the token qualifies as a financial instrument, it falls under the Spanish Securities Market Law (Law 6/2023) and requires a prospectus, registration with the CNMV, and full compliance with the rules on public offerings.
If the token does not qualify as a financial instrument but is a utility token, an asset-referenced token (ART) or an e-money token (EMT), it is subject to the requirements of MiCA. This includes obligations relating to the white paper, prior notification to the CNMV, and authorization when applicable (especially for ARTs and EMTs).
Presence of any explicit restrictions on ICOs or the issuance, distribution and/or transfer of token/coins
As mentioned in paragraph f) above, Bank of Spain and the CNMV have in the joint communicates advised against ICOs and cryptocurrencies.
Obligations and requirements to issue token/coins
As mentioned, the issuance of token/coins is not regulated in Spain, and it is not possible to obtain a license.
Classification of token/coins in the jurisdiction
In Spain, token/coins are not recognized in any manner.
Presence of a duty to publish a prospectus bevor offering token/coins to investors
To the extent that they can be considered as securities, ICOs may fall within the prospectus filing requirements of the Spanish stock market law ('LMV