On January 12, 2024, the website of the Prime Minister’s Office of the Council of Ministers published information on the commencement of work on a draft law on crypto-assets (hereinafter: “the Law”). The Law aims to supplement the provisions of Regulation 2023/1114 of May 31, 2023 on cryptocurrency markets (hereinafter: “MiCAR” ), in particular to the extent that MiCAR obliges EU member states to establish cryptocurrency competent authorities and equip them with certain supervisory powers.
As we can read in the information published on the government website, the draft Law will identify the Financial Supervisory Commission (hereinafter: “FSC”) as the competent authority for matters related to the application of MiCAR. In addition, the draft will introduce specific tools for the FSC to effectively carry out its supervisory activities, define the obligations of cryptocurrency issuers, and introduce sanctions of an administrative and criminal law nature for non-compliance with the rules of participation in cryptocurrency trading.
Recall that there is little time left before MiCAR comes into force. The application of the relevant provisions of MiCAR will begin on June 30, 2024 and December 30, 2024, respectively. MiCAR not only regulates the issuance, offering and admission to trading of cryptocurrencies with a particular focus on asset-linked tokens (ART), tokens that are e-money (EMT) and utility tokens, but also sets rules for the activities of cryptoasset service providers (CASPs).
The designation of the FSC as the competent authority in matters related to cryptoassets is not surprising. Many of the regulations contained in MiCAR refer to regulations concerning the capital market or the e-money services market, which have long been subject to the FSC’s supervision. As of December 1, 2024, by force of Order No. 599 of the Prime Minister, a Cryptocurrency Market Supervision Team was also separated in the FSC, whose task is to prepare the FSC for the application of MiCAR regulations.
To date, the FSC has already commented on the legal aspects of the cryptoassets market on a number of occasions. In this context, attention can be drawn in particular to position of December 10, 2020, warning of January 12, 2021, communication of January 27, 2023, communication of September 11, 2023 or communication of October 18, 2023. An important element of the statements formulated by the FSC so far has been to draw the attention of market participants to the risks associated with investment activities in the cryptoassets market.
Currently, the conduct of crypto-asset business is not associated with excessive regulatory burdens in Poland. However, the so-called Fifth AML Directive was implemented in Polish law, as a result of which providers of virtual asset services became obligated institutions under the AML and terrorist financing law of March 1, 2018. Thus, such providers were also required to obtain registration in the register kept by the Director of the Tax Administration Chamber in Katowice.
With the entry into force of MiCAR, the regulatory situation in the cryptocurrency market will change dramatically. However, MiCAR regulations will not apply to all types of cryptoassets. MiCAR will not specifically cover cryptoactives that can be classified as financial instruments. Such cryptocurrencies will continue to be subject to regulations covering the capital market, including the Financial Instruments Trading Act of July 29, 2005. Also outside the scope of the new law will be non-convertible tokens (NFTs).
The planned date for the adoption of the MiCAR Supplementary Law is the second quarter of 2024. The draft has not yet been published on the website of the Government Legislation Center. The bill, once the final version is determined, will have to go through the standard legislative path to become effective on June 30, 2024. With the enactment of the proposed law, an amendment to the Law of July 21, 2006 on Financial Market Supervision is also expected.
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The law firm of Raczynski, Skalski & Partners specializes in providing legal advice to the financial sector, including serving clients operating in the cryptocurrency market. Our lawyers prepare stakeholders for the commencement of Regulation 2023/1114 of May 31, 2023 on cryptoasset markets (MiCAR), including serving issuers, exchange offices and cryptoasset exchanges. The firm is experienced in handling business ventures related to various types of virtual assets and also advises clients on AML/CFT obligations, including preparing PP/FT risk management procedures, assisting in drafting and updating internal risk assessments and meeting reporting obligations to regulators.
