PORTUGAL Law and Practice Contributed by: Nuno Lima da Luz and Tomás Gomes da Silva, Cuatrecasas
malities and strong enforcement protections such as appropriation and close-out mechanics where agreed. Crypto-assets will not automatically fit this privileged regime unless they qualify as “financial instruments” in the relevant legal sense, which is a classification-sen- sitive question that has become more salient under MiCA’s perimeter (including the need, in certain cases, to explain why a token is not excluded from MiCA or otherwise regulated as a traditional financial instru- ment). Practically, parties often rely on contractual control arrangements with custodians and on robust enforcement clauses, but they must accept that the “financial collateral” safe harbour may not be available for many token types. 1.2.2 Access to Banking There is no general rule in Portuguese law that bans crypto-asset firms from having bank accounts, but access is heavily shaped by AML/CFT risk decisions and by the fact that crypto activity historically sat out- side prudential and conduct supervision. The BdP has explicitly stated that issuing and trading crypto-assets is not illegal and not prohibited, but that it was “only regulated and supervised” in the AML/CFT context (pre-MiCA), and that its intervention did not extend to prudential or conduct supervision. This position- ing tends to increase “de-risking” behaviour by finan- cial institutions, because counterparties must price in heightened due diligence, reputational risk, and uncertainty about customer asset protection. As a practical matter, crypto-asset service firms should expect banks and payment institutions to require stronger onboarding packages than for ordi- nary commercial customers. Those packages com- monly need to evidence governance and beneficial ownership transparency, source-of-funds/source- of-wealth controls, sanctions screening, transaction monitoring, and clear business lines that do not con- stitute deposit-taking or other reserved activities. The BdP has also issued consumer-facing alerts identi- fying entities that are not registered as VASPs and, in some cases, not authorised to accept deposits or other repayable funds, which underscores the super- visory sensitivity around banking-like activity. Post- MiCA, the existence of an EU authorisation should improve bankability over time, but the transition peri-
od until 1 July 2026 means not all legacy operators are yet MiCA-authorised. Post-MiCA, authorised CASPs that provide crypto- assets services to clients which entail holding clients’ funds, other than e-money tokens, are required to place those funds with a credit institution or a central bank by the end of the business day following the day on which clients’ funds were received. 1.2.3 ESG/Sustainable Finance EU sustainable finance obligations apply to digital- asset structures primarily through the nature of the entity and product rather than through the mere existence of tokens. If a crypto exposure is packaged inside a regulated product or entity that falls within EU sustainable finance disclosure regimes, then the relevant disclosure and reporting rules can be trig- gered through that wrapper, even if the underlying exposure is a crypto-asset. MiCA itself is not framed as an ESG regulation, but it is part of the broader EU digital finance package and sits alongside other EU- wide policy work that increasingly expects transpar- ency, risk governance, and standardised disclosures. From a Portuguese supervisory angle, ESG expec- tations will often show up indirectly in governance, risk management, and disclosure reviews rather than as crypto-specific “green token” rules. The practi- cal compliance issue is that crypto-asset service providers and issuers may need to align marketing narratives with substantiated disclosures, particularly where retail audiences are targeted, because mis- leading “sustainability” claims will be tested against general consumer and advertising standards. Portu- gal’s Advertising Code broadly defines “advertising” as commercial communications aimed at promoting goods or services, which is a wide definition that can capture crypto promotions, including ESG-related themes. In practice, firms should assume that sus- tainability claims will be scrutinised both as financial promotions and as consumer-facing statements. 1.2.4 Tax Portugal materially updated its tax treatment of cryp- to-assets through the State Budget for 2023 (Law 24-D/2022). That law amended the Personal Income Tax Code (IRS) to explicitly address crypto-related
510 CHAMBERS.COM
Powered by FlippingBook