Regulatory Alerts2024-12-27
Circular 1/2024 of the National Securities Market Commission Repealing Circular 1/2022 on Advertising of Cryptoassets Presented as Investment Objects
The Spanish National Securities Market Commission (CNMV) issued Circular 1/2024 to formally repeal its previous Circular 1/2022, which had established national regulations for advertising cryptoassets. This repeal is necessitated by the entry into force of the EU's Markets in Crypto-Assets (MICA) Regulation, which establishes a comprehensive and exclusive European framework for cryptoasset issuance and services. Consequently, the CNMV's prior national competence to regulate advertising in this area is no longer applicable as EU law preempts national legislation in this domain.
I. GENERAL PROVISIONS NATIONAL SECURITIES MARKET COMMISSION 27149 Circular 1/2024, of December 17, of the National Securities Market Commission, repealing Circular 1/2022, of January 10, regarding advertising on cryptoassets presented as investment objects.
Royal Decree-Law 5/2021, of March 12, on extraordinary measures to support corporate solvency in response to the COVID-19 pandemic, starting from the absence at that time of a European regulatory framework regarding cryptoassets and to the extent that these had increasing presence in the financial system, included a new Article 240 bis in the Legislative Decree 4/2015, of October 23, approving the consolidated text of the Securities Market Law (current Article 247 of Law 6/2023, of March 17, on Securities Markets and Investment Services), to grant the CNMV competencies in order to subject the advertising of cryptoassets to administrative control. Likewise, it enabled the CNMV to develop through Circular the objective and subjective scope, as well as the control mechanisms and procedures applicable.
Consequently, Circular 1/2022, of January 10, of the National Securities Market Commission, regarding advertising on cryptoassets presented as investment objects, was issued to establish a regulatory framework in matters of advertising on cryptoassets presented as investment objects, in a context where it was perceived that the growing presence of cryptoassets in the financial system generated certain challenges in the field of investor protection, since there was no regulation at that time that could adequately respond to the risks that these assets could entail.
Subsequently, Regulation (EU) 2023/1114 of the European Parliament and of the Council of May 31, 2023, on markets in crypto-assets and amending Regulations (EU) 1093/2010 and (EU) 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937, better known as MICA by its English acronym, was approved. This law regulates for the first time the issuance and provision of services related to cryptoassets, establishing uniform rules for issuers of cryptoassets and for service providers in relation to said cryptoassets. Its main objective is none other than to provide, for cryptoassets, a set of uniform rules that promote transparency, protect those who invest in them, facilitate innovation and competition. Likewise, the regulation contains specific rules on the advertising of cryptoassets.
The entry into force of this Community regulation, which will entail the establishment of legislation that will grant investors a certain degree of protection when investing in cryptoassets, discourages maintaining national-level legislation regulating the advertising of these assets.
To these ends, the approval of a Community regulation on cryptoassets has determined, on the one hand, that the regulatory authorization provided for in Article 247 of Law 6/2023, of March 17, on Securities Markets and Investment Services, has lost one of its premises, namely the absence of an appropriate European regulatory framework; and on the other hand, that it is not possible to establish national legislation on the aspects regulated at the European level. It is essential to highlight that the regulation does not contain in this matter an express reference to what national Law provides nor grants Member States a discretionary margin to develop these provisions, so it is forbidden for Member States to legislate on the matter.
OFFICIAL STATE GAZETTE No. 312 Friday, December 27, 2024 Sec. I. Page 181242 cve: BOE-A-2024-27149 Verifiable at https://www.boe.es
It is therefore appropriate, in summary, to agree on the repeal of Circular 1/2022, of January 10, of the National Securities Market Commission, regarding advertising on cryptoassets presented as investment objects.
The CNMV Council, in exercise of the conferred powers, has approved this Circular, which contains the following rules:
Sole Article. Regulatory Repeal. Circular 1/2022, of January 10, of the National Securities Market Commission, regarding advertising on cryptoassets presented as investment objects, is expressly repealed.
Final Provision. Entry into Force. This Circular shall enter into force the day following its publication in the "Official State Gazette".
Madrid, December 17, 2024.–The President of the National Securities Market Commission, Rodrigo Buenaventura Canino.
OFFICIAL STATE GAZETTE No. 312 Friday, December 27, 2024 Sec. I. Page 181243 cve: BOE-A-2024-27149 Verifiable at https://www.boe.es https://www.boe.es OFFICIAL STATE GAZETTE D. L.: M-1/1958 - ISSN: 0212-033X