Crypto-asset advertising becomes regulated in Spain

The issuance, sale and purchase of crypto-currencies and/or other crypto-assets is not a regulated activity in Spain, to the extent such crypto-assets do not qualify as financial instruments, in which case the relevant Prospectus Directive and MiFID rules would apply.

Spain has not implemented the fifth anti-money laundering directive (AML5) yet - although implementation is expected this year - and, when implemented, crypto-currency exchanges and custodians will need to register with the Bank of Spain and comply with Spanish AML rules.

Very recently the European Commission published a draft European Regulation on crypto-assets (MiCA) which is currently under discussion.

However, reality is going faster than regulation and we have seen over recent months in Spain a significant increase in the advertising of crypto-assets, including crypto-currencies and other assets using Distributed Ledger Technology (DLT) targeted at Spanish resident investors.

In order to protect potential Spanish investors from the risks linked to crypto-assets the Spanish Government approved in March 2021 a new Royal Decree-Law which amends the Spanish Securities Markets Law. The key issue of this amendment is that the CNMV (the Spanish investment services and securities regulator) is appointed as the competent authority for the supervision of the advertising of crypto-assets or other assets and instruments that are presented to the public as an investment opportunity, even if they are not activities or products subject to regulation and/or supervision in Spain.

On 5 April 2021, the CNMV issued a public consultation in order to prepare the regulations on crypto-assets advertising. The main points of the CNMV consultation are the following:

1. The scope of the rules - subjective, including Spanish and foreign entities advertising crypto-assets to Spanish resident investors; objective, excluding from the scope of the advertising materials formal documentation, such as “white papers”, analysis and reports to professional investors, and excluding from the scope of crypto-assets non-fungible assets, and assets used as a means of payment.
2. The type and content of control and supervision. The CNMV is considering if prior authorization and/or notification should be required for certain mass-market advertising campaigns, and is likely to require mandatory disclaimers that should be included in such marketing materials.