POLAND Law and Practice Contributed by: Michał Wołoszański, Łukasz Kudela and Marta Solarska-Kaleńczuk, Wołoszański & Partners
2.4 Token Issuance General Framework
Polish Fund Framework Polish investment funds operate under the Polish Act on Investment Funds and Management of Alternative Investment Funds, which implements the Undertak- ings for Collective Investment in Transferable Securi- ties (UCITS) Directive and the Alternative Investment Fund Managers (AIFM) Directive. UCITS funds and Polish public open-ended funds cannot, in practice, take direct exposure to crypto-assets where those assets fall outside the eligible-assets framework. Indirect exposure through exchange-traded products (ETPs), structured products or other instruments may be considered only where the instrument itself is eligi- ble under the applicable fund rules and the investment complies with diversification, liquidity, counterparty- risk and risk-management requirements. Alternative Investment Structures Polish specialised open-ended funds, closed-ended funds and alternative investment companies may be better placed to obtain exposure to crypto-assets, directly or indirectly, but only where this is consist- ent with the applicable statutory limits, constitutional documents, investment policy and risk-management framework. The manager remains responsible for val- uation, liquidity management, custody arrangements, conflicts of interest, investor disclosures and regula- tory reporting. Operational Considerations for Managers Funds and managers with crypto-asset exposure need to consider the fund’s investment policy, the regulatory classification of the asset, custody arrange- ments – including whether a MiCA-authorised CASP is required or appropriate for crypto-asset safekeep- ing and how this interacts with the statutory role of the fund depositary – valuation methodology under volatile market conditions, AIFMD risk-management requirements and investor disclosures. Managers should be prepared to document their assessment of the underlying technology, the regulatory status of the relevant assets and trading venues, custody and private-key arrangements, liquidity, valuation and investor-suitability considerations.
Token issuance from Poland is legally possible, but since 30 December 2024 it must be assessed pri- marily under MiCA, together with securities law and AML/CFT rules where relevant. The absence of Polish MiCA implementing legislation has materially affected issuances requiring action by the Polish competent authority. ART issuers generally require authorisation from the national competent authority; in Poland that authority is expected to be KNF once formally desig- nated by the implementing act, subject to the sepa- rate MiCA regime applicable to credit institutions. Until then, applicants for ART authorisation cannot submit applications domestically and may need to consider authorisation in another EU member state. EMTs may be offered only by credit institutions or authorised electronic-money institutions, subject to the applica- ble MiCA requirements. White Paper Requirements MiCA imposes mandatory white-paper requirements for public offers of crypto-assets and admissions to trading on EU trading platforms. The white paper must contain prescribed information about the issuer, offer- or or person seeking admission to trading, the project, the crypto-asset, the rights and obligations attached to it, the underlying technology, the risks and the prin- cipal adverse impacts of the consensus mechanism on the climate and other environment-related mat- ters. White papers for ARTs are subject to ex ante approval by the competent authority; white papers for crypto-assets other than ARTs and EMTs must gen- erally be notified to the competent authority before publication but are not subject to prior approval. EMT white papers are subject to a separate MiCA regime applicable to credit institutions and electronic-money institutions. Exemptions For crypto-assets other than ARTs and EMTs, exemp- tions apply, in particular, to: • offerings addressed to fewer than 150 persons per member state; • offerings addressed solely to qualified investors; • offerings with a total consideration in the EU below EUR1 million over 12 months; and
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