PORTUGAL Law and Practice Contributed by: João G Gil Figueira, Rodrigue Devillet Lima and Catarina Andrade Miranda, GFDL Advogados
10.10Regulation 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 investment funds in corporate form. Within this regulatory framework, no specific provisions exclusively address investments in blockchain assets. 10.11Virtual 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 entities 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 instru - ments. However, it is accepted by individuals or entities as a medium of exchange or investment and can be transferred, stored, and traded elec- tronically.” 10.12Non-Fungible Tokens (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 Classification of Blockchain Assets ). However, depending on the specific character - istics of an NFT, it may be susceptible to being included in the category of securities, thus being subject to the regulations outlined in the Portu - guese Securities Code.
MiCA defines “crypto-asset” as “a digital rep- resentation of a value or of a right that can be transferred or stored electronically using distrib- uted ledger technology 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 fol - lowing types of crypto-assets: • fractional NFTs; • NFTs issued in a large series/collection; • 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. The rules set by PSD2 (Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015) were transposed to the Portuguese legal framework under Decree-Law No 91/2018, enacting the Regime for Payments and Electronic Money. However, other suprana - tional European regulations and opinions, such as the technical standards set by Regulation (EU) 2018/389 of November 2017 on strong customer authentication, also play a pivotal role when establishing new open banking solutions. 11. Open Banking 11.1 Regulation of Open Banking
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