Name
Global FinTech Guide
Country _ Name
Poland
SectionTitle
ICO / token sale
Body
Companies and projects have increasingly relied on the sale of digital assets, or tokens, as a means of fundraising. These tokens generally do not grant the holders an ownership interest in the issuing company or project, but may provide governance rights, access rights or other utility. This has been conducted through public sales known as initial coin offerings (ICOs), proliferation through token generation events (TGEs) or private sales, among other mechanisms.  While showing characteristics of traditional methods of fundraising, there are a range of unanswered questions related to the legal classifications of such products. As ICOs and TGEs will usually be distributed online and internationally, there is usually no single legal framework applying to such transaction, and the legal framework of each market in which the tokens may be offered or sold needs to be considered.
 

Introduction

Attitude of the country towards ICOs/token sales

When the idea of ICOs came to Poland, it aroused wide interest especially among Start-ups. However, with the passage of time, it seems that this idea has lost its importance or is being implemented by companies in other, more pro ICO countries.

The Financial Supervision Authority (Komisja Nadzoru Finansowego) raised the issue of crypto activities already in 2017 by publishing a position paper on investments under ICOs/ITOs and then, by subsequent communications, pointed out the risks associated with such investments. In 2020, the Financial Supervision Authority has published a position statement summarising the communications to date on the issuance and trading of cryptocurrencies and has taken the view all along that cryptocurrencies are very risky.

The Office of Competition and Consumer Protection conducts investigations against various projects that rely on tokenisation, checking collective consumer interests are being violated. 

Legal affairs

Presence of any explicit regulation on ICOs and the issuance of token/coins

No explicit regulation on ICOs and issuance of token/coins has been introduced so far in Poland. 

Presence of any explicit restrictions on ICOs or the issuance, distribution and/or transfer of token/coins

Indicating any restrictions on ICOs regarding the issuance, distribution and/or transfer of token/coins is only possible after examining the legal nature of the specific token/coin. The Financial Supervision Authority has only indicated certain regulatory areas into which a particular token/coin and its issuer may fall if specific conditions are met. Examples include regulations regarding payment services, trading and investments funds. 

The legal aspects of ICOs are mainly hidden in the following issues:

    a) legal qualification of the token (including as a financial instrument) - it is relevant to the legal obligations, charged to the entrepreneur issuing tokens, token trading rules or requirements towards other entities (buyers of tokens or intermediaries in their trading);
    b) tax consequences of token trading (both in terms of income tax and VAT);
    c) obligations of the ICO organiser (entity issuing the tokens), e.g. regarding compliance with consumer law, anti-money laundering and anti-terrorist financing regulations, banking or investment fund regulations, and its legal liability towards token holders;
    d) jurisdiction and applicable law, including cross-border issues (an ICO as a process conducted on an online platform is global);
    e) personal data protection in blockchain and crypto currencies - in particular in relation to the General Data Protection Regulation.

Obligations and requirements to issue token/coins

There is no such license in Poland. 

Classification

of token/coins in the jurisdiction For security reasons, some companies in Poland are reaching for a positive interpretation from the Financial Supervision Authority that the proposed tokenisation is not subject to supervision. Although it is not a necessary condition, it’s a very helpful one.

The Financial Services Authority published a position statement in 2020, in which it divided cryptocurrencies into several categories:

  1. payment tokens (currency type tokens/exchange tokens) - a payment token may meet the definition of electronic referred to in the Payment Services Act (ustawa o uslugach platniczych) in the event that there is a central money issuer (issuer), and the tokens themselves represent a fixed value expressed in money and are covered by the issuer's obligation to repurchase them.
  2. utility tokens; 
  3. investment/security tokens, of which the following types may be distinguished:
    a) tokens that incorporate rights identical to those incorporated in securities (which should be examined in accordance with the regulation of Act on Trading in Financial Instruments (Ustawa o obrocie instrumentami finansowymi)
    b) tokens that, due to the rights incorporated therein, correspond, in full or in part, to participation titles (rights) in collective investment undertakings (investment fund, alternative investment company) (The Act on Investment Funds and Alternative Investment Fund Management (Ustawa o funduszach inwestycyjnych i zarzadzaniu alternatywnymi funduszami inwestycyjnymi));
    c) tokens that are financial instruments other than those mentioned above, which should be examined in accordance with the regulation of Act on Trading in Financial Instruments (Ustawa o obrocie instrumentami finansowymi);
    d) investment tokens based on rights resulting from participation in a limited liability company.
 

Presence of a duty to publish a prospectus bevor offering token/coins to investors

Due to the fact that it seems that in the current legal state tokens or cryptocurrencies are not qualified as securities (there is ongoing discussion on this subject) in Poland, in most cases the Act on Public Offering should not apply to them and there should be no need to publish a prospectus.

However, if the tokens in question were to be classified as securities (which cannot be excluded in advance and requires a case-by-case analysis), the situation would change. They could be subject to a public offering only after the prior publication of a prospectus pursuant to EU Regulation 2017/1129 and supplementary provisions of the Act on Public Offering (unless they would fall within the subject matter of any of the exceptions). 

In any case it is a good practice to publish white papers. The purpose of the whitepaper is to explain the ICO concept, the company's plans for the ICO campaign and the ethical principles governing the project. The whitepaper primarily serves to establish trust and transparency between the company and the buyers who will be part of the venture. However, the whitepaper is not subject to any approval and its content is not regulated.

Presence of AML/KYC requirements that are needed to be fulfilled regarding (i) the initial issuance of token/coins and (ii) any following transfer of token/coins to third parties

If a company engaged in token-related services can be classified as an obliged institution under the AML Act (which requires an analysis taking into account the exact nature of the services offered), it will be required to apply financial security measures. Obligated institutions are, for example, entities engaged in the business of providing exchange services between virtual currencies and means of payment or exchange between virtual currencies.

F
inancial security measures include identifying the customer and verifying the customer's identity; identifying the beneficial owner and taking reasonable steps to verify the customer's identity and establish ownership and control, assessing the business relationship and, as appropriate, obtaining information about its purpose and intended nature, and monitoring the customer's business relationship on an ongoing basis. 
 

Additional comments regarding (i) the legal situation for ICOs/token/coins and (ii) any following transfer of token/coins to third parties

N/A

Economic conditions

Market size for ICOs/token sales and existence of any previous regulated ICO/token sales in the jurisdiction

The ICO market in Poland is still undeveloped and it is difficult to find detailed information about it. One of the record-breaking Polish ICOs is Golem Network, which raised $8.6 million.

Additional comments regarding the economic situation for ICOs/token sales or what companies must be aware of in this business area

N/A

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