The German Financial Supervisory Authority (BaFin) has on 8 March 2023[i] announced its general stance with respect to the classification of non-fungible token models (NFTs).
Suggesting a strictly case-by-case analysis, BaFin takes a rather conservative approach towards defining NFTs as securities primarily due to lack of immediate exchangeability. In other words, an NFT could potentially be considered a security only in cases where, for instance, a significant number of these tokens would embody identical repayment and interest claims.
Also, if an NFT embodies types of ownership rights such as a promise of distribution, the token could in principle be considered as an investment under the Asset Investments Act (VermAnIG). The mere act of speculation by token holders would, on other hand, not essentially suffice for the NFT in question to assume an investment purpose.
Notably, NFTs can in principle have a potential use in the financial sector, especially in cases where they can be transferable and tradable on the financial market, hence embedding certain security like rights i.e. membership rights or contractual claims similar to stocks and debt instruments. As stipulated by BaFin, “the transferability can be assumed as a given with the current standards […] whereas tradability requires a minimum of standardisation.”
To recap, here the nexus would be the definition of types of rights associated with a given token model alongside the potential utility of those rights after the token issuance.
Taking a stance similar to the draft EU proposal for a Regulation in Markets for Crypto Assets (MiCA), BaFin adopts the position that NFT fragmentation, which would result in fungible tokens each representing an equal share of an NFT, would in theory satisfy the interchangeability feature.
On a different note, France, with the parliamentary voting of 28 February 2023[ii], is set to introduce tighter licensing rules for new entrants to its crypto ecosystem in an attempt to harmonise its national laws in accordance with the upcoming EU laws. Under the existing rules, entities have the option to opt for simplified registration procedures with the l’Autorité des Marchés Financiers (AMF) under less disclosure requirements. Once passed, the new players will be facing stricter anti money laundering (AML) measures, namely clear segregation of customer funds, a new set of reporting guidelines and more detailed risk and conflict of interest related disclosures.
Lastly, the sudden failures and recent regulatory issues in the US financial sector surrounding the three active financial institutions in the cryptocurrency industry, namely Silicon Valley Bank (SVB), Signature Bank and Silvergate Capital, have raised confidence questions and have inevitably spawned ever more volatility in the industry. A simple bank run, where large numbers of depositors withdraw funds simultaneously in fear of potential insolvency, is so far seen as the root cause.
In the context of potential contagion risk, however, questions have also arisen as to whether the banking system in Europe has in general more effective risk management infrastructure and stronger liquidity requirements in place.
[i] See here https://www.bafin.de/SharedDocs/Veroeffentlichungen/DE/Fachartikel/2023/fa_bj_2303_NFT.html.
[ii] See here https://www2.assemblee-nationale.fr/scrutins/detail/(legislature)/16/(num)/1098.
