The sale and purchase of bitcoins and/or other crypto assets is currently not a regulated activity in Spain, save for those crypto assets that qualify as securities, in relation to which general MiFID rules would apply.
This is expected to change, once the fifth anti-money laundering directive (AML5) is implemented in Spain this year, which will introduce the obligation on crypto exchanges and custodians to register with the Bank of Spain, and will require them to comply with Spanish AML rules. On top of that, at European level a draft European Regulation on crypto-assets is currently under discussion.
In the meantime, the Spanish Government recently issued a new royal-decree with the aim of protecting retail potential investors in digital financial instruments and assets (Royal Decree). This seeks to counter the increase of mass-market advertising campaigns in relation to the selling of crypto-assets, including bitcoin and other assets using Distributed Ledger Technology (DLT) targeted at the Spanish market.
Recognizing that there is no specific regulation at European level governing the advertising of crypto-assets, the Royal Decree is based on the premise that this technology represents three main risks to society. First of all, they allow transactions to be carried out anonymously, which facilitates their use for illegal purposes. Secondly, the proper safekeeping of the keys associated with clients’ crypto-assets is crucial for the provision of crypto-services and for the protection of clients. Thirdly, they are being increasingly offered as an investment product, not only to specialized investors but also to the general public.
Considering these risks and to reinforce investors’ protection, the Royal Decree introduces the following changes to the Spanish Capital Markets Act:
- it grants the CNMV (as the financial services regulator), supervisory powers to control 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 financial services supervision in Spain. For such purposes, the CNMV will issue within the next few weeks draft rules on the scope and content of the rules that crypto advertising should comply with.
- it adds contraventions of these new advertising rules to the list of potential infringements which could lead to sanctions.
In relation to point (1) above, right now the CNMV is requesting preliminary input from the market until 16 April 2021 in order to prepare the draft rules in this regard. Among the points included in the CNMV’s consultation, input from the market is requested on two main points:
- the scope of the rules, which in principle is expected to capture Spanish and/or foreign entities targeting crypto advertising at Spanish domiciled investors, but excluding from its scope formal documentation, such as “white papers”, analysis and reports to professional investors, as well as non-fungible assets and assets used as a means of payment.
- the type and content of control and supervision. In this regard, the CNMV is considering whether or not to require prior authorization and/or notification for certain mass-market campaigns, and is requesting market input on the type of mandatory disclaimers that should be included in such marketing adverts (including whether or not they should follow a standard format, etc). After receiving and analyzing this initial feedback from the market, which will be published unless the sender requests confidentiality, the CNMV will prepare a new draft of the crypto advertising rules, which will be open to further public consultation before they are published as final binding rules.
 Royal Decree 5/2021 dated 12 March on extraordinary measures to support business solvency in response to the COVID-19 pandemic, a reform to the Spanish Capital Markets Act (Royal Legislative Decree 4/2015, dated 23 October, on which the revised text of the Security Markets Act is approved).