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FinTechs belonging to this category offer financial services using crypto currencies. This category also includes FinTechs utilising blockchain and distributed ledger technologies (DLT) upon which Bitcoin and Ethereum are based, among others. FinTechs develop and do research in this field in order to create new services – e.g. crypto currency exchange markets, wallet providers, NFTs-related services, new payment services, "smart contracts" or new clearing and settling services.
Introduction
Attitude of the country towards financial services using crypto currencies
The Spanish government has been very cautious and conservative in regard to cryptocurrencies since Spanish law is highly protective of the rights of investors and consumers, and because during the recession, there were a large number of cases of financial and securities fraud.
On 8 February 2018 the Bank of Spain and the CNMV issued a joint communique about the perils of investing and dealing in cryptocurrencies and emphasizes that small investors should avoid these investments. The joint communique does not contain a normative definition of cryptocurrencies, although it describes accurately concepts like ICOs or “tokens” by differentiating between “security tokens” and “utility tokens” using terms in Spanish which can be easily understood and are accessible.
On 9 February 2021 the Bank of Spain and the CNMV issued a new joint communique about cryptocurrencies insisting that they are not regulated and that they are a high-risk investment.
Legal affairs
Obligations and requirements to provide financial services using crypto currencies described above
There is no specific regulation on cryptocurrencies in Spain, except that they cannot be treated as legal tender, which is exclusively reserved for the Euro as national currency. The CNMV also points out that there are no instances of cryptocurrencies or ICOs which have been approved or verified by any regulatory authority such as the Bank of Spain or the CNMV. In Spanish law, cryptocurrency cannot be considered either as a financial instrument (promissory note, derivative, etc.) or a currency (domestic or foreign) but it is considered that they could be assimilated to securities in the case of public offerings or to chattels or commodities when they are traded individually.
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”) as the definition of financial instruments and negotiable securities is very wide (article 2 LMV), and the Spanish government can add new types of securities by its own fiat without an amendment of the law being necessary, provided this has been agreed under EU regulations.
The current position of CNMV and Bank of Spain is that a specific regulation of cryptocurrency and ICOs is necessary, but such regulation can only be made at European Union level and after consultation with certain third countries, such as the U.S. which play a major role in the world’s financial markets.
However, the CNMV considers that these types of platforms should have at least a set of rules of custody or registration, management of conflicts of interest between customers and transparency in the matter of commissions (in addition to the prevention of money laundering), which is why the CNMV recommends that platforms apply the principles of the regulation of Spanish security market voluntarily.
Additional comments regarding the legal situation for financial services using crypto currencies or what FinTech’s must be aware of in this business area
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Economic conditions
Market size for financial services using crypto curr