FINLAND Law and Practice Contributed by: Olli Kiuru, Jere Lehtimäki and Essi Hietaoja, Waselius
10.5 Regulation of Blockchain Asset Trading Platforms Operating trading platforms for crypto-assets such as blockchain assets or facilitating the exchange of cryp - to-assets for funds or other crypto-assets requires authorisation from the FIN-FSA under MiCAR. Regarding secondary market trading, MiCAR cap - tures transactions both through intermediaries and P2P when such activities qualify as crypto-asset services. If intermediaries facilitate trading, they are subject to authorisation and operational requirements under MiCAR. However, users with self-hosted wallets can hold their private keys and digital assets while directly sending or receiving assets in a P2P manner. In such cases, neither the wallet software provider nor the wallet itself effectuates transactions on the user’s behalf and is not required to obtain authorisation (as there is no crypto-asset service provider involved). Notwithstanding, although P2P transactions generally fall outside MiCAR’s primary regulatory focus, they may still trigger regulatory obligations if the platform or facilitator undertakes intermediary-like functions, such as providing custody services or order matching. 10.6 Staking MiCAR does not explicitly regulate staking, as the term itself is not mentioned within the regulation. This absence has led to interpretative challenges regard - ing its applicability to staking services. However, the provision of staking services may involve elements that fall within MiCAR’s scope. For instance, if a ser - vice provider engages in the custody or administration of crypto-assets or private keys on behalf of clients, these activities could trigger authorisation require - ments under MiCAR. In addition, EBA and ESMA have recently highlighted potential risks associated with crypto-asset staking, suggesting that certain aspects of staking services could trigger regulatory requirements. The FIN-FSA has not issued any further guidance or regulations regarding staking services. 10.7 Crypto-Related Lending MiCAR does not apply to the lending and borrow - ing of crypto-assets, but this is subject to applica - ble national law. Under Finnish law, to the extent that
no repayable funds are raised from the public (only licensed credit institutions have the right to engage in credit institution activity, which means business operations where repayable funds are received from the public and credit or other financing is offered for own account), the provision of loans and other similar financing to corporate customers is generally permis - sible in Finland. This applies also in relation to crypto- assets. However, the lending of crypto-assets to consumers is subject to obtaining a separate right. This would, for example, mean obtaining a payment or credit institution licence or, if no such licence is obtained, a registration under the Finnish Act on the Registration of Certain Credit Providers and Credit Intermediaries, as described in 4.1 Differences in the Business or Regulation of Fiat Currency Loans Provided to Dif- ferent Entities . 10.8 Cryptocurrency Derivatives MiFID II does not provide a single overarching defini - tion of derivatives or financial instruments, but instead lists examples of contracts that qualify as financial instruments. These contracts derive their value from an underlying asset and can be settled either in cash or through the delivery of the underlying asset. ESMA has indicated that crypto-assets can act as underly - ing instruments for derivative financial instruments. ESMA has also stated that certain crypto-assets can themselves qualify as derivatives. Entities offering crypto-asset derivatives must determine whether their products fall within the definition of financial instru - ments and possibly comply with MiFID II’s regulatory framework. MiCAR expressly excludes crypto-assets that qualify as financial instruments. However, where the deriva - tives qualify as crypto-assets but not financial instru - ments, the entity offering such assets or services related to such assets is subject to MiCAR’s regula - tory framework. 10.9 Decentralised Finance (DeFi) The regulation of decentralised finance (DeFi) depends on the extent to which a service is genuinely decen - tralised. Under MiCAR, crypto-asset services that are provided in a completely decentralised manner and
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