PORTUGAL Law and Practice Contributed by: João G Gil Figueira, Rodrigue Devillet Lima and Catarina Andrade Miranda, GFDL Advogados
10.10 Regulation of Funds The operation of investment funds in Portugal is subject to the new regulation outlined in the Asset Management Regime, which establishes the legal framework for collective investment undertakings in securities in corporate form and real estate invest - ment funds in corporate form. Within this regulatory framework, no specific provisions exclusively address investments in blockchain assets. 10.11 Virtual Currencies Please see 6.2 Regulation of Different Asset Classes . There is no standalone concept of blockchain assets. The AML Act defines “virtual assets” to identify enti - ties that operate as VASPs and are subject to AML/ KYC obligations. A virtual asset is “a digital representation of value that is not necessarily tied to a legally established currency and does not have the legal status of fiat currency, securities or other financial instruments. However, it is accepted by individuals or entities as a medium of exchange or investment and can be transferred, stored, and traded electronically.” 10.12 NFTs There are no specific regulations in Portugal regarding the issuance or trading of NFTs or the operation of NFT platforms/marketplaces (please see 10.3 Clas- sification of Blockchain Assets ). However, depending on the specific characteristics of an NFT, it may be susceptible to being included in the category of secu - rities, thus being subject to the regulations outlined in the Portuguese Securities Code. MiCA defines a “crypto-asset” as “a digital represen - tation of a value or of a right that can be transferred or stored electronically using distributed ledger technol - ogy or similar technology”, excluding NFTs from being classified as crypto-assets. However, this exclusion does not entirely exempt NFTs from falling under the purview of MiCA. The regulation still encompasses the following types of crypto-assets: • fractional NFTs; • NFTs issued in a large series/collection;
tion of “Issuers” of Blockchain Assets must adhere to diverse regulatory obligations concerning customer identification and verification, AML and the prevention of financing terrorism. If virtual assets are classified as financial instruments or products, the exchange operator may need to obtain a licence to offer investment services in accord - ance with the Portuguese Securities Code. This code implements MiFID II and may also be subject to the DLT Pilot Regime, depending on the circumstances. For more on this topic, see 10.4 Regulation of “Issu- ers” of Blockchain Assets . 10.6 Staking There are currently no specific regulations solely dedi - cated to staking activity. However, staking may fall under broader regulatory frameworks depending on its structure and the services provided. 10.7 Crypto-Related Lending There are no specific provisions for cryptocurrency loans and, as such, they will be regulated under the general provisions of the Portuguese Civil Code or the Commercial Code, depending on the nature of the parties involved in the lending agreement. For “pri - vate loans”, a written contract is required for loans exceeding EUR2,500. For amounts over EUR25,000, the agreement must be formalised through a public deed. If both parties involved in the loan are com - mercial entities, the formalities outlined above will be waived in accordance with the Commercial Code. 10.8 Cryptocurrency Derivatives Derivatives, by their nature, represent a distinct class of securities. Therefore, cryptocurrency derivatives fall under the classification of financial instruments as outlined in Section C of Annex I of MiFID II and must adhere to its general provisions. 10.9 Decentralised Finance (DeFi) There is no set of specific regulations or laws govern - ing DeFi. Even if the platform is decentralised, certain regulatory obligations may still apply depending on the nature of the services provided.
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