CZECH REPUBLIC Law and Practice Contributed by: Ondřej Mikula, Jan Šovar and Markéta Klabouchová, FINREG PARTNERS
10.3 Classification of Blockchain Assets Although the terms used in this context vary (eg, crypto-assets v virtual assets), the classifi - cation of blockchain assets is already relatively well established. This is due to the adoption of the substance over form approach, whereby the features of the crypto-asset determine the clas - sification and the related regulatory regime of the asset, rather than its designation by the issuer. With MiCA in place, the following categorisation could be considered the primary way of classify - ing blockchain assets: • crypto-assets within the scope of MiCA, and • crypto-assets outside the scope of MiCA. As regards the first category, MiCA further dis - tinguishes between asset-referenced tokens, e-money tokens and other crypto-assets. In the second category comprising of crypto-assets outside the scope of MiCA, there are various types of assets, the most relevant being crypto- assets that are “financial instruments” , deposits or funds. Depending on the nature of the cryp - to-asset, the respective regulatory framework applies. One of the main problems in crypto-assets clas - sification is the different implementation of the term “financial instrument” in the national leg - islation of EU member states. To address this issue, guidelines on the conditions and criteria for the qualification of crypto-assets as “finan - cial instruments” have been issued by the ESMA. The extent to which national authorities follow these guidelines in practice will therefore be important for a more uniform classification of crypto-assets across the EU.
10.4 Regulation of “Issuers” of Blockchain Assets
As described in 10.3 Classification of Block - chain Assets , the regulation of “issuers” as well as initial sales of blockchain assets depends on the legal classification of blockchain assets. If the blockchain assets qualify as a crypto-asset under MiCA, the obligations set out in MiCA apply. The applicable rules for public offerings of crypto-assets and their admission to trading varies depending on the category of crypto- asset, with stablecoins (asset-referenced tokens and e-money tokens) being the most strictly regulated. Only licensed entities such as credit institutions are able to offer stablecoins to the public, while other crypto-assets can be publicly offered without any licence, provided that cer - tain transparency requirements are met. The key obligation is to draw up, notify to the competent authority and publish an information document called a white paper, which could be likened to a prospectus, unless an exemption applies (eg, an offer to fewer than 150 or solely to qualified investors). On the other hand, if the blockchain assets qualify as “financial instruments” , the existing financial services legislation applies (eg, MiFID II, MAR or the Prospectus Regulation). The issuer of blockchain assets that qualify as transferable securities is required to prepare and publish a prospectus, which must be approved by the CNB prior to the public issuance of the assets, if no exemption applies. In the case of blockchain assets that are elec - tronic money but not e-money tokens within the meaning of MiCA, the PSA applies.
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