POLAND Law and Practice Contributed by: Michał Wołoszański, Łukasz Kudela and Marta Solarska-Kaleńczuk, Wołoszański & Partners
al 22 of MiCA indicates that crypto-asset services provided in a fully decentralised manner without any intermediary should fall outside MiCA. Conversely, where crypto-asset services are provided only partly in a decentralised manner, MiCA may still apply. The regulation does not define “fully decentralised” in its operative provisions, and the threshold remains fact- sensitive. Decentralisation as a Matter of Substance EU supervisory authorities treat decentralisation as a matter of substance rather than label. The EBA and ESMA joint report of January 2025 analyses DeFi as a spectrum and highlights the relevance of identifi- able intermediaries, governance arrangements, con- trol rights, front-end operation, upgrade mechanisms, admin keys and other residual control points. As a result, DeFi structures with identifiable operators, maintainers, front-end providers, governance partici- pants or other persons exercising material influence may fall within MiCA or other regulatory frameworks, depending on the services actually provided. CeFi Firms Interacting With DeFi Centralised finance firms in Poland may interact with DeFi protocols in connection with the services they offer, but they remain responsible for the regulated service provided to clients. A CASP using a DeFi pro- tocol to execute client orders, source liquidity, provide staking or lending exposure, or support custody-like arrangements must consider MiCA authorisation, cli- ent-asset safeguarding, conflicts of interest, outsourc- ing, operational resilience, disclosure and conduct-of- business requirements. AML/CFT obligations continue to apply to client onboarding, transaction monitoring and sanctions screening, including under the EU travel There is no dedicated legal form for decentralised autonomous organisations (DAOs) or DeFi structures under Polish law. In their pure form, DAOs exist as smart contracts on a distributed ledger and have no legal personality, registered office or statutory form. Where a DeFi project requires legal identity – for example to contract with service providers, hold intel- lectual property or treasury assets, interact with regu- rule where applicable. 5.2 DeFi Structures No Dedicated Legal Form
lated counterparties, employ or engage contributors, or operate a user-facing interface – a legal wrapper is typically used. Choice of Wrapper Polish-led DeFi projects commonly rely on ordinary corporate or foundation structures, either in Poland or abroad. The choice of wrapper depends on the project’s risk profile, tax position, governance model, investor expectations and the role the entity is intend- ed to play, such as treasury holder, contracting party, protocol developer, front-end operator or governance facilitator. Substance and Capital There are no DeFi-specific substance or capi- tal requirements under Polish law. The applicable requirements are those of the chosen legal wrapper. In practice, the level of substance should reflect the wrapper’s role: passive treasury vehicles may require limited substance, while front-end operators or enti- ties interacting with regulated counterparties need appropriate management and controls. Regulated Activity Through DAO Governance Where the wrapper or any associated person provides crypto-asset services on a professional basis, issues or offers regulated tokens, operates a regulated trad- ing venue or otherwise carries out regulated financial activity, the relevant MiCA, AML/CFT, securities-law or payment-services regime may apply. DAO govern- ance does not relieve an identifiable regulated entity, operator or service provider of its compliance obliga- tions. 5.3 Liability Three Potential Liability Paths There is no Polish case law definitively addressing the liability of participants in a DAO or other DeFi structure for harm caused by the protocol. Three liability paths may be available depending on the facts. Where a legal wrapper exists, claims may be brought against the wrapper under contract or tort. Where there is no wrapper but an identifiable individual or group acts as a de facto operator – for example by developing, deploying, maintaining or controlling the protocol or its user-facing interface – tort liability may be pursued against that individual or group under the Polish Civil
494 CHAMBERS.COM
Powered by FlippingBook