CZECH REPUBLIC Law and Practice Contributed by: Stanislav Šimek, Vojtěch Mlynář and Jakub Dostál, BADOKH
10.5 Regulation of Blockchain Asset Trading Platforms The regulatory regime for trading platforms depends on the type of blockchain asset being traded. The two primary frameworks are mutually exclusive: MiCA governs platforms trading crypto-assets, while MiFID II/CMUA governs platforms trading security tokens. The Czech AML Act may govern platforms providing services related to NFTs. Crypto-asset platforms must obtain a licence from the CNB. Only legal entities established in the EU may provide such services, with a single licence passport - able across all member states. Platforms that are fully decentralised with no identifiable intermediary fall out - side MiCA’s scope, though the threshold for qualify - ing as sufficiently decentralised remains unclear. Pure peer-to-peer transactions without any intermediary equally fall outside MiCA. Security token trading venues fall outside MiCA and must instead obtain authorisation under MiFID II/CMUA, with the CNB as the competent author - ity. Alternatively, a platform may seek authorisation under the DLT Pilot Regime (see 6.1 Permissible Trad- ing Platforms ), which allows trading and settlement of tokenised securities on-chain, and grants certain regulatory accommodations, eg, direct retail investor access. The CNB has already granted such authorisa - tion to the Czech Central Securities Depository. Platforms facilitating the trading of NFTs may require authorisation from the FAU. 10.6 Staking Staking as such is not regulated under MiCA. How - ever, ancillary activities connected with the provision of staking services may in certain cases qualify as a regulated service (eg, custody or administration of crypto-assets on behalf of clients), in which case a licence from the CNB may be required. Where staking services fall outside MiCA’s scope, the provider may require authorisation from the FAU as a virtual asset service provider. The CNB has explored whether the pooling of crypto- assets from multiple clients for the purpose of staking
services relating to NFTs may trigger licensing obliga - tions under the Czech AML Act. The classification of crypto-assets (ie, mainly wheth - er a crypto-asset qualifies as a financial instrument) remains open to discussion. While ESMA has pro - vided guidance on this matter, each case needs to be determined individually. 10.4 Regulation of “Issuers” of Blockchain Assets Issuers of blockchain assets are regulated based on the classification of the asset they issue. For crypto-assets under MiCA, the requirements vary by category. Issuers of ARTs must obtain authorisa - tion from the CNB, unless they are a credit institution or fall within the de minimis category. Issuers of EMTs must be a credit institution or an e-money institution. Issuers of crypto-assets other than ARTs and EMTs do not require prior authorisation, but must publish a white paper and notify the CNB before issuance, unless exempted. Security token issuers fall outside MiCA and are subject to the rules applicable to traditional financial instruments. A public offering of security tokens trig - gers obligations requiring a prospectus to be pre - pared, approved by the CNB and published prior to the offering. While the tokenisation of real-world assets is gain - ing momentum, the resulting tokens usually fall within the security token category and remain subject to the traditional regulatory framework for financial instru - ments. NFT issuers are not subject to specific issuance obli - gations, provided the NFTs are genuinely unique. However, where their issuance is coupled with the provision of related services, the Czech AML Act obli - gations applicable to virtual asset service providers may be triggered, potentially requiring authorisation from the FAU.
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