PORTUGAL Law and Practice Contributed by: João G Gil Figueira, Rodrigue Devillet Lima and Catarina Andrade Miranda, GFDL Advogados
• crypto-assets featuring a sole NFT element serving as a unique identifier; and • crypto-assets that, despite being unique and non-fungible, exhibit de facto features linked to practical uses, rendering them fungible and/or not entirely unique. NFT marketplaces are required to register as VASPs if they enable the crypto-to-crypto exchange of assets. MiCA 2.0 is expected to include NFTs within its scope. 10.13 Stablecoins Prior to the application of MiCA, so-called stablecoins were not regulated as a specific category under Portu - guese law, and crypto-assets referencing fiat currency generally fell outside the electronic money framework (Directive (EU) 2015/2366 of the European Parliament and of the Council) unless they met all of its legal requirements. MiCA introduced a distinct and harmonised EU regu - latory regime for crypto-assets designed to maintain a stable value. In this context, EMTs differ from tradi - tional electronic money in that they are crypto-assets issued using DLT, while pursuing a similar stabilisa - tion objective by reference to a single official currency. EMTs are therefore subject to MiCA, in addition to the electronic money regulatory framework, and are regulated separately from pre-MiCA electronic money instruments. MiCA does not use the term “stablecoin” as a legal category, neither does the Portuguese legislator. Nev - ertheless, both EMTs and ARTs correspond, in func - tional and economic terms, to what the market com - monly refers to as stablecoins. Under Article 3 (6) of MiCA, an ART is defined as “… a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combina - tion thereof, including one or more official currencies.” Under Article 3 (7), an EMT is defined as “… a type of crypto-asset that purports to maintain a stable value by referencing the value of one official currency.”
Each category of these crypto-assets is subject to tailored requirements regarding reserve assets and redemption rights, reflecting their different economic function and risk profiles. EMTs are subject to the most stringent regime: issuers of EMTs must main - tain a full reserve of funds equal to the nominal value of the tokens in circulation at all times, with the funds segregated from the issuer’s own assets. EMT hold - ers benefit from a statutory right of redemption at par value, exercisable at any time, reinforcing the role of EMTs as a digital equivalent of fiat money. By contrast, issuers of ARTs are subject to a risk-based reserve regime. They must establish and maintain a reserve of assets that is adequate to support the sta - bilisation mechanism of the token and to mitigate the risks arising from the reference assets. MiCA requires detailed disclosure of the reserve arrangements in the crypto-asset white paper, as well as ongoing reporting obligations to the competent authorities. The reserve must be segregated from the issuer’s estate, subject to appropriate custody arrangements, and managed exclusively in the interest of token holders. While ART holders must be granted a right of redemption, redemption does not need to occur at par value and may be subject to conditions, pricing mechanisms or fees, provided these are transparent, fair and clearly disclosed. The rules set by PSD2 (Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 Novem - ber 2015) were transposed to the Portuguese legal framework under Decree-Law No 91/2018, enacting the Regime for Payments and Electronic Money. How - ever, other supranational European regulations and opinions, such as the technical standards set by Reg - ulation (EU) 2018/389 of November 2017 on strong customer authentication, also play a pivotal role when establishing new open banking solutions. With the adoption of PSD2, two new categories of ser - vice providers were established in the payment indus - try: payment initiation service providers (PISPs) and account information service providers (AISPs). At the 11. Open Banking 11.1 Regulation of Open Banking
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