POLAND Law and Practice Contributed by: Michał Wołoszański, Łukasz Kudela and Marta Solarska-Kaleńczuk, Wołoszański & Partners
1.2 Crypto-Assets 1.2.1 Property Considerations Property Characterisation Under Polish Law Polish law has not codified the property nature of crypto-assets. The Civil Code distinguishes between tangible things ( rzeczy ) and incorporeal rights. Crypto- assets are not tangible things, but are typically ana- lysed as intangible assets or property rights ( prawa majątkowe ) where they have economic value, are transferable and can be the subject of legal transac- tions. This characterisation is reinforced by the tax treatment of virtual currencies and by AML legislation. With MiCA, the EU-level definition of a “crypto-asset” as a digital representation of value or of a right trans- ferable and stored electronically using DLT or similar technology now operates alongside these domestic categories. Enforcement of Ownership Claims Because crypto-assets are not tangible things, the regime for vindicatory claims under the Civil Code does not apply directly. Ownership or entitlement disputes are usually pursued on contractual, unjust- enrichment or tort grounds, and may be supported by interim security measures, including measures addressed to centralised exchanges or wallet provid- ers where appropriate. Criminal-procedure rules also allow for the securing of crypto-assets, including through orders or requests directed at virtual asset service providers (VASPs) or other intermediaries. Transfer of Ownership Transfer of crypto-assets is generally analysed under the general civil-law rules on the transfer of intangible assets or property rights, with the on-chain transac- tion serving as the technical mechanism by which control over the asset is transferred. Where the asset is held through a custodian, transfer may be reflected in the custodian’s internal records, subject to the con- tractual terms governing custody. Analogies to book- entry instruments may be useful in analysis, but they do not amount to direct application of the securities settlement regime. Collateral Arrangements Use of crypto-assets as collateral can be considered under the general civil-law rules on pledges over transferable property rights and, potentially, under
only records may also qualify as documents for the purposes of the documentary form introduced into the Civil Code in 2016, provided that the content of the relevant declaration can be accessed and the person making it can be identified. Practical Limits and Hybrid Structures Several practical limits apply. Where the law requires written form, a notarial deed – for example, for real- estate transfers and certain corporate transactions – or written evidence of the transaction, such as where a receivable evidenced in writing is assigned, pure code-based execution may be insufficient on its own. Hybrid structures, with a written or notarial “wrapping” agreement governing the contractual relationship and the smart contract serving as a technical mechanism of performance, are the market norm. Consumer-pro- tection rules – pre-contractual information, the right of withdrawal and the prohibition of unfair terms – con- tinue to apply and cannot be excluded by reliance on code. The treatment of force majeure, mistake and fraud in fully automated transactions has not yet been tested by Polish higher courts. 1.1.5 Industry and Trade Bodies Industry bodies and expert organisations addressing blockchain technology in Poland include: • the Blockchain Polska Foundation, focused on knowledge-sharing, education and policy dialogue; • the Polish Chamber of Information Technology and Telecommunications (PIIT), representing the broader ICT sector and engaging in regulatory and digital-transformation initiatives; • the Polish Bank Association (ZBP), whose work on payments, digital banking and financial-sector innovation is relevant to blockchain, tokenisation and digital identity; and • the FinTech Poland Foundation, which has been active in the policy debate around the MiCA imple- menting legislation. None of these bodies has supervisory or rule-making powers; their role is consultative, educational and rep- resentative.
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