SWEDEN Law and Practice Contributed by: Niclas Rockborn, Rikard Sundstedt and Robin Entenza, Gernandt & Danielsson
3.4 Passporting As with many other categories of EU financial service providers, crypto-asset service providers may lever- age their home-state authorisation to provide services across the EEA under MiCA’s passporting regime. Passporting under MiCA, although not entirely auto- matic, is a relatively straightforward procedure. It involves submitting a notification to the SFSA of the intention to offer services in another EEA member state, specifying information such as the types of ser- vices offered in the host jurisdiction, how the services will be provided, whether a local branch will be estab- lished or whether it is a case of an entirely remote service offering. The SFSA then communicates the notification to the host country’s supervisory authority and to ESMA. Passporting is limited to the range of services for which the crypto-asset service provider is appro- priately licensed, and does not extend to any other types of crypto-asset services nor to any services of a completely different type. There is no corresponding equivalence or recognition regime available for third- country crypto-asset service providers. 4. Cross-Border Services 4.1 Marketing Marketing Marketing of digital assets is governed by general marketing rules under Swedish law, including: • the Swedish Marketing Act (SFS 2008:486); • the Swedish Act on Price Information (SFS 2004:347); and • the Swedish Act on Contractual Terms in Consum- er Relations (SFS 1994:1512). In 2023, following a large number of complaints being filed with it, the Swedish Consumer Agency (SCA) examined how digital assets were being marketed in Sweden. Complaints have commonly concerned different kinds of fraudulent offers related to digital assets. However, marketing of fraudulent offers falls outside the authority of the SCA and is handled by other authorities such as the SFSA. The SCA’s exami-
nation is therefore only focused on the marketing of legal digital asset offerings by Swedish service pro- viders. In its examination, the SCA identified several areas where much of the marketing of legal digital assets failed to comply with Swedish marketing rules, most notably: • unfounded positive claims regarding market posi- tion (such as purporting to be Sweden’s leading crypto broker), swiftness and customer satisfac- tion, etc; • advertising implying that the service provider is under the supervision of the SFSA and conse- quently approved by the SFSA (when the service provider was only registered with the SFSA); • insufficient display of risk information, while much of the marketing examined contained risk informa- tion, the information should, according to the SCA, be more prominently displayed and should also be included in every piece of advertising; • concealed price information – information regard- ing fees should be shown in direct connection with the marketing (a customer should not need to scroll down or click on a link to access the informa- tion); • terms in consumer relations prescribing dispute settlement in foreign courts or in arbitration, which are generally considered unfair in relation to con- sumers; • terms that require notice of termination to be sent in writing, which are considered unfair in relation to consumers; • terms regarding changes in general terms, where the service provider is allowed to change the terms without proper notice and without giving the con- sumer the chance to terminate the agreement; and • unfair terms regarding limitation of liability, both in relation to the services provided and to the infor- mation on the service provider’s websites. 4.2 White Labelling White labelling refers to a situation in which a regu- lated institution provides products or services which are distributed and offered to customers under the brand of a partner who may or may not be a regu- lated entity. White-label solutions can, in principle,
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