Main Page

In January 2022, Spain implemented regulations to govern the promotion of cryptoassets. These rules require service providers of cryptoassets and certain legal or natural persons to inform the CNMV of any publicity campaigns with an audience greater than 100,000 investors 10 days prior and must include disclaimers regarding risks associated with the assets. Additionally, this regulation outlines the principles and rules applicable when it comes to marketing material related to cryptoassets. With no specific framework in place for fintech products and services other than Law 5/2015, businesses should abide by the same marketing legislation applicable to any other company. Apart from Spanish Consumer Law, which sets out some principles for marketing, as well as general law on advertising, additional promotional provisions may be found in Spanish laws on e-commerce and financial services via distance marketing.¹

Blockchain technology, cryptocurrencies, or the issuance of tokens are not specifically regulated in Spain, but the European and Spanish regulators have been assessing these products for some years.¹

The European Commission released its proposed regulation on markets in cryptoassets (MiCA) on 24 September 2020, as part of its Digital Finance Strategy. MiCA will be applicable to all providers of cryptoasset services and issuers as well as any token that isn't already regulated by the EU, such as utility tokens, payment tokens, asset-referenced stablecoins, and a new form of e-money token. Security tokens already covered by existing EU regulations, along with central bank digital currencies, would be exempt from MiCA's scope; however it does apply substantial requirements to global stablecoins (GSCs). This regulatory action appears designed to ensure central banks retain power over monetary policy and not expose people to potential risks from these GSCs.¹

MiCA defines a cryptoasset issuer as anyone who offers cryptoassets to third parties, which is an intentionally broad definition. A number of general requirements will apply to all issuers, with the requirements for stablecoins (or asset-referenced tokens) and e-money tokens (payment tokens) being more stringent.¹

Although MiCA is still in the proposal stage, it must go through the EU legislative process. The ECB, the European Economic and Social Committee, and the European Data Protection Supervisor have all published opinions on the proposal in 2021. The European Council adopted its position on MiCA on 24 November 2021. The latest draft has delayed its effective entry into force until 2024.¹

ESMA has published two statements on ICOs. Also, the CNMV and the BoS have warned firms and investors about ICOs, cryptocurrencies and tokens. In February 2021, they issued their last joint press statement about cryptocurrency investment risks. In the same vein, and as mentioned above, the CNMV has regulated the advertising of cryptoassets for investment purposes (through Circular 1/2022).¹

Following the transposition of the Fifth Anti-Money Laundering (AML) Directive into Spanish legislation, the BoS has created a register of providers offering exchange services between virtual currencies and fiat currencies and custodian wallet providers. As of 29 January 2022, providers who were previously required to register with the BoS are now subject to Spanish AML legal requirements.¹

There are no clear-cut rules regarding the tax treatment of cryptocurrencies and tokens in Spain, although the European Court of Justice (ECJ) and Spanish tax authorities have issued specific guidelines.¹

The ECJ in its judgment of 22 October 2015 (C-264/14) stated that Article 135(1)(e) of Council Directive 2006/112/EC exempts transactions involving non-traditional currencies, such as cryptocurrencies, from VAT. Consequently, according to the ECJ, sale and purchase operations with digital currencies executed by those liable to VAT should be excluded from Spanish VAT. On the contrary, 'mining' activities aimed at creating virtual monies should not be subject to VAT. Both criteria were validated by the Spanish fiscal administration in specific binding rulings in which it was also confirmed that staking activities falling on those under a obligation for payment of VAT are subjected to no more than exemption from this tax.¹

Spanish tax-resident individuals who own cryptocurrencies may be subject to capital gains tax if they sell or exchange them. Other crypto activities, such as mining, may need to be regarded as business activities for Spanish taxation and treated accordingly (with all the taxes that implies). The Tax Agency has various binding rulings from 2018 concerning this, and is now also issuing decisions related to other taxes such as wealth or gift tax.¹

As part of the Spanish tax fraud prevention program, companies that manage cryptocurrencies, as well as exchange platforms, are required to provide information regarding the identities and transactions of cryptocurrency holders. In order to prevent cryptocurrency fraud, Spanish residents are required to file Form 721; this requirement is expected to be approved soon.¹

Recent regulatory changes, such as the new regulation on certain aspects of digital trust services (Law 6/2020) or cybersecurity regulations (Royal Decree 43/2021), have come into effect in the past months. Additionally, initiatives to reinforce the recognition of specific digital rights in Spain, like the proposal for approval of a Spanish Charter of Digital Rights, should be noted due to their impact on the fintech legal framework. Ledger technologies such as blockchain are predicted to be the primary disruptor in global financial sectors and though not yet widespread in Spain, they may soon have an influence beyond just cybersecurity and cryptocurrencies.¹

Virtual currencies in Spain

Fintech in Spain

Fintech in other countries

Notes

1. https://thelawreviews.co.uk/title/the-financial-technology-law-review/spain