FINLAND Law and Practice Contributed by: Olli Kiuru, Jere Lehtimäki and Essi Hietaoja, Waselius
10.12 NFTs Under MiCAR, the regulatory treatment of non-fun - gible tokens (NFTs) depends on their specific char - acteristics rather than their mere classification as “non-fungible”. MiCAR generally excludes NFTs from its scope if they are truly unique and not issued in a manner that makes them interchangeable or func - tionally similar to traditional financial instruments or crypto-assets. However, if NFTs are issued in large series or collections with characteristics that suggest they are fungible or have an investment-like nature, they may be captured by MiCAR’s regulatory perim - eter. Furthermore, where NFTs qualify as financial instruments, their issuance is subject to the MiFID II regulatory framework instead of MiCAR. 10.13 Stablecoins Under MiCAR, the crypto-assets that are identified as stablecoins are primarily EMTs and ARTs. EMTs are crypto-assets that purport to maintain a stable value by referencing the value of one official currency. ARTs are crypto-assets other than EMTs and that purport to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies. When receiving funds in exchange for issuing EMTs, the issuer must safeguard the funds in accordance with Directive 2009/110/EC (the “E-Money Directive”), and at least 30% of such safeguarded funds must be deposited in separate accounts in credit institutions. Likewise, ART issuers must always constitute and maintain a reserve of assets legally and operation - ally segregated from other funds to cover the risks associated with the assets referenced and to address liquidity risks. EMTs must be issued at par value upon receipt of funds, and holders of EMTs have the right to redeem their tokens at any time at par value. Holders of ARTs shall have the redemption right towards the issuer at all times, with redemption at the market value of the referenced assets (or in the referenced assets themselves). EMTs and ARTs classified as significant are subject to additional compliance requirements, including higher own funds requirements and stricter liquidity management obligations. Essentially, it is prohibited to grant interest to holders of ARTs and EMTs based on the duration of holding.
thus without an intermediary do not fall within the scope of regulation. However, MiCAR does not automatically exempt all DeFi platforms. If a party facilitates the trading of crypto-assets in a manner that involves some form of control, governance or influence over the platform, regulators may view them as an intermediary. In such cases, they could be subject to the same regulatory requirements as centralised crypto-asset service pro - viders. Therefore, simply operating under the label of DeFi does not necessarily mean a service is outside the regulatory perimeter. The degree of decentrali - sation and the presence of any entity that exercises control or facilitates transactions will be key factors in determining whether and how regulation applies. 10.10 Regulation of Funds As far as is known, there is no specific regulation on funds that invest in crypto-assets, including block - chain assets. Directive (EU) 2009/65/EC on the co-ordination of laws, regulations and administrative provisions relat - ing to undertakings for collective investment in trans - ferable securities (UCITS) has been implemented nationally in the Finnish Act on Common Funds (ACF, 213/2019). In accordance with the ACF, common fund activity shall refer to the raising of funds from the pub - lic for their joint investment and the investment thereof mainly in financial instruments, as well as the manage - ment of a common fund and the marketing of units. As crypto-assets are not necessarily classified as financial instruments, it should be considered that common funds may not, in principle, invest in block - chain assets. However, alternative investment funds do not have such a strict categorisation and are able to invest quite freely. Therefore, alternative investment funds could, in theory, invest in blockchain assets, although the FIN-FSA has been somewhat reluctant towards such applications. 10.11 Virtual Currencies Please refer to 10.3 Classification of Blockchain Assets .
282 CHAMBERS.COM
Powered by FlippingBook