In the Guidance Notice that was recently published on www.bafin.de, BaFin explains which information and documents it requires from issuers, so it can answer queries constructively, speedily and in advance.

The guidance notice deals extensively with the nature of crypto-tokens and informs the reader inter alia about their classification as a security under the Prospectus Regulation (PR) or the German Securities Prospectus Act (Wertpapierprospektgesetz – WpPG) or as an investment product under the Capital Investment Act (Vermögensanlagengesetz – VermAnlG). Furthermore, the Guidance Notice deals with potential obligations to prepare a prospectus or an information sheet under the PR, the WpPG or the VermAnlG as well as with authorisation requirements under the Banking Act (Kreditwesengesetz – KWG), the Payment Services Supervision Act (Zahlungsdiensteaufsichtsgesetz – ZAG) and the Investment Code (Kapitalanlagegesetzbuch – KAGB).

On February 20, 2018, BaFin published an initial advisory letter on the basic classification under supervisory law of crypto-tokens as financial instruments for the purposes of securities supervision (cf. file://bafwfs02/HOME$/KochRu/PROFIL/Downloads/dl_hinweisschreiben_einordnung_ICOs_en.pdf; cf. also BafinJournal March 2018 (latter text is in German)). The Guidance Notice takes BaFin’s practical experience into account as well as the fact that BaFin still receives numerous queries on the classification of tokens as well as on obligations pertaining to their issuance.