SWEDEN Law and Practice Contributed by: Niclas Rockborn, Rikard Sundstedt and Robin Entenza, Gernandt & Danielsson
both local operations and foreign operations actively targeting a Swedish audience. By contrast, the concept of reverse solicitation can potentially enable foreign service providers (regard- less of whether they are established inside or outside the EEA) to avoid Swedish licensing requirements, as services (of any kind) are not deemed to be provided in Sweden in cases of reverse solicitation. The princi- ple of reverse solicitation essentially permits a foreign firm to provide regulated services to Swedish clients on an unlicensed basis provided there is a genuine and unsolicited request by the Swedish client for one or more particular services. Whenever a firm intends to rely on reverse solicitation, it is essential to ensure that there has been no prior marketing of the relevant firm’s services that can be considered to have influ- enced a client’s request, neither in the form of broad public marketing to a Swedish audience or direct mar- keting to a particular client who subsequently makes a request for services or products. Furthermore, a client serviced on a reverse solicitation basis may not be offered or provided any other category of services or products than those requested, nor be subsequently offered the same service at a later point in time unless another request has been made by the client. ESMA has developed guidelines specifying how to determine whether reverse solicitation applies in the context of crypto-asset services, and the SFSA complies with these guidelines. 3.2 Set-Up Requirements The formalities for obtaining a licence in Sweden as a crypto-asset service provider are set out in MiCA and corresponding EU delegated regulations. The licence application is submitted to the SFSA, and comprises various documentations such as: • a programme of operations setting out the types of crypto-asset services to be provided; • a description of governance arrangements; • a description of prudential safeguards; • information on shareholders with qualifying hold- ings; • documentation to support the suitability of mem- bers of the applicant’s management body; and
• a business continuity plan, policies for detection and prevention of money laundering and terrorist financing, etc. Additional documents may be required for each spe- cific service, eg, a custody and administration policy, a description of the procedure for the segregation of cli- ent crypto-assets and funds, and an execution policy. Under MiCA, a crypto-asset service provider is required to have in place prudential capital equal to the higher of two amounts: either a percentage of the fixed overhead costs of the preceding year, or a fixed amount depending on the nature of crypto- asset services provided (ranging from EUR50,000 to EUR150,000). As an alternative to maintaining own funds, a cryp- to-asset service provider may obtain professional indemnity insurance covering the territories where the service provider operates, provided that such an insurance policy has adequate coverage and other- wise is compliant with more detailed requirements set out in MiCA. 3.3 Change of Control Part of the process of becoming authorised under MiCA as an asset-referenced token issuer or as a crypto-asset service provider is the approval of sig- nificant owners as satisfying the criteria of sufficiently good repute. Significant owners are shareholders or members, whether direct or indirect, who have quali- fying holdings. A qualifying holding means any direct or indirect holding in an issuer of asset-referenced tokens or in a crypto-asset service provider which represents at least 10% of the capital or of the vot- ing rights or which makes it possible to exercise a significant influence over the management of the firm. Before any acquisition of a qualifying holding in an authorised issuer or crypto-asset service provider, the proposed acquirer must undergo an assessment of suitability. Any change of control in relation to the firm is therefore subject to a regulatory procedure involving an assessment by the SFSA. This corresponds to the established procedure for a number of other catego- ries of regulated entities such as banks, investment firms and payment service providers.
621 CHAMBERS.COM
Powered by FlippingBook