PORTUGAL Law and Practice Contributed by: João G Gil Figueira, Rodrigue Devillet Lima and Catarina Andrade Miranda, GFDL Advogados
10.4 Regulation of “Issuers” of Blockchain Assets The CMVM’s first regulatory approach consisted of communicating with entities involved in launching ini - tial coin offerings (ICOs) regarding the legal qualifica - tion of issued crypto-assets. It stipulated that such an asset must meet the following requirements to be considered a security: • it represents one or more legal situations of a pri - vate and patrimonial nature; • considering the represented legal situation, it is comparable to a typical security; and • in the information provided by the issuer, there are elements from which the issuer’s commitment to conduct can be inferred, resulting in an expectation of return for the investor, whether it be: (a) the right to income (if the token, for example, grants the right to profits or interest); or (b) the performance of acts by the issuer or related entity suitable for increasing the token’s value. Therefore, if a token is classified as a security, its ICO will be subject to the rules and obligations for publish - ing a public offering prospectus as stipulated in the Portuguese Securities Code. As for other tokens that do not qualify as securities because they do not meet the requirements above, it is necessary to determine whether they fall within the scope of the AML Act regarding entities engaged in activities with virtual assets (ie, VASPs). If so, they are subject to compliance with applicable legal and regulatory provisions relating to AML and counter-ter - rorism financing (see 6.3 Impact of the Emergence of Cryptocurrency Exchanges ). On the other hand, if a token is classified as an asset- referenced token or an e-money token, it will fall within the scope of MiCA regulation and be subject to its requirements for issuers/offerors. 10.5 Regulation of Blockchain Asset Trading Platforms The regulation of crypto-assets is primarily deter - mined by the categorisation of the assets being trad - ed. VASPs offering services described in 10.4 Regula-
is the competent national authority for granting and revoking specific authorisations to operate a multi - lateral trading or securities settlement system based on DLT. 10.3 Classification of Blockchain Assets Currently, no overarching legal framework or singu - lar legal definition for blockchain assets is applica - ble within Portugal. Irrespective of the terminology employed, the classification of blockchain assets as regulated financial instruments is contingent upon the specific characteristics of each asset. This determi - nation must be made on a case-by-case basis, con - sidering whether the asset falls within the purview of existing financial services regulation. In accordance with the current legal framework, spe - cific blockchain assets meet the criteria to be clas - sified as financial instruments under MiFID II (and its incorporation into Portuguese law) or under the Por - tuguese Securities Code. In essence, any blockchain asset exhibiting the attributes of a financial instrument is likely to meet the criteria for regulation within this framework. The Portuguese law does not provide a concrete defi - nition of the types of tokens that can be considered securities. It is necessary to analyse the characteris - tics of each token to determine whether it qualifies as a security under the Portuguese Securities Code. Generally, most NFTs fall outside the concept of secu - rities due to their non-fungible nature. However, this conceptualisation may be challenged in situations where NFTs are fractionalised and divided into small - er tradable units, a process similar to how traditional assets can be securitised and divided into shares. The MiCA Regulation, now fully in force, broadens its scope to include new categories of crypto-assets that were previously unregulated under EU law. These include asset-referenced tokens and e-money tokens, as well as other tokens that do not fall under these classifications or existing EU financial services regu - lations. The new rules, particularly those relating to transparency and authorisation requirements, will vary depending on the specific characteristics of e-money tokens, asset-referenced tokens and utility tokens.
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