POLAND Law and Practice Contributed by: Wojciech Ługowski, Lawarton Lugowski Kapica Spolka Komandytowa
The wording of the draft law suggests that stak - ing services provided by CASPs will generally be prohibited, with limited exceptions arising from the diversity of staking models. The proposed ban has faced criticism from the market, with industry representatives arguing that MiCAR allows for regulation rather than pro - hibition. The legislative process is still ongoing, meaning that the final version of the law could maintain the ban, modify its scope or abandon it entirely. 10.7 Crypto-Related Lending Under MiCAR, EU member states have the authority to regulate crypto lending at the nation - al level (Recital 94). Poland’s draft Cryptoassets Act explicitly bans crypto lending, making it one of the strictest regulatory approaches in the EU. The prohibition is clearly stated in the draft law, leaving no room for interpretation. The ban applies specifically to CASPs, mean - ing that regulated entities will not be allowed to grant crypto loans or facilitate lending transac - tions in any form. The proposed ban has faced criticism from the market, with industry representatives arguing that MiCAR allows for regulation rather than pro - hibition. The legislative process is still ongoing, meaning that the final version of the law could maintain the ban, modify its scope or abandon it entirely. 10.8 Cryptocurrency Derivatives Cryptocurrency derivatives fall under MiFID II regulations if they qualify as financial instru - ments. On 17 December 2024, ESMA’s Final Report (Annex III) outlined criteria for classifying crypto-assets as financial instruments.
If a derivative is based on a crypto-asset meet - ing these criteria, it is regulated under MiFID II regulations, requiring authorisation and compli - ance with investor protection rules. Otherwise, it may remain outside financial regulations, subject only to consumer protection laws. Poland follows EU regulations without national modifications, assessing crypto-asset deriva - tives on a case-by-case basis. 10.9 Decentralised Finance (DeFi) DeFi is not currently explicitly regulated under EU or Polish law. ESMA’s October 2023 report highlights challenges in applying existing rules to decentralised systems that lack intermediaries. MiCAR and the DLT Pilot regime do not directly cover DeFi, leaving a regulatory gap. In Poland, there are no dedicated regulations for DeFi and no established supervisory prac - tice has yet developed. A DeFi service facilitating security token or crypto trading is not automati - cally exempt from regulation. If its activities fall under MiFID II regulations or AML laws, it may still have to comply. 10.10Regulation of Funds There are currently no specific rules regarding investing in crypto-assets. Therefore, the gen - eral rules applied to investing funds apply. 10.11Virtual Currencies Virtual currencies are legally defined under AML regulations, distinguishing them from other blockchain assets. The definition follows EU AML directives, recognising virtual currencies as a digital representation of value that is not issued or guaranteed by a central authority and does not have the status of legal tender.
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