Last month, the ECB Crypto-Assets Task Force released a paper entitled “Crypto-Assets: Implications for financial stability, monetary policy and payments and market infrastructures.” One of the goals of the paper is to put forward a common definition of the term ‘crypto-assets’ that can serve as a basis for the consistent analysis of this phenomenon.
A ‘crypto-asset’ is defined in the paper as denoting “any asset recorded in digital form that is not and does not represent either a financial claim on, or a financial liability of, any natural or legal person, and which does not embody a proprietary right against an entity.”
“The distinctive feature of crypto-assets,” the task force continues, “from which they derive their specific risk profile, is the lack of an underlying claim/liability. Units of a crypto-asset may be used as a means of exchange and are de-facto considered by their users as assets, in the sense of ‘something of value’, although they do not correspond to the liability of, and claim on, any party. As a consequence, crypto-assets are fundamentally different from various forms of financial claims and/or their digital representation using the technology and possibly the infrastructure that underpin crypto-assets.”
Crypto-assets fall outside the scope of PSD2, EMD2 and MiFID II
Building on its analysis and definition of crypto-assets, the task force notes the following:
- Crypto-assets are not electronic money within the meaning of EMD2.
- Nor are crypto-assets scriptural money in the form of commercial bank money or central bank money.
- Therefore, crypto-assets do not fall within the scope of PSD2.
- Furthermore, crypto-assets in itself are not ‘financial instruments’ within the meaning of MiFID II.