Blockchain Association responds to BaFin-circulars

the BaFin has to be informed to be published in October the draft of a circular letter, in the financial institutions on the "duties of Care in the context of virtual currencies". In a recently published response to the draft of the Blockchain has highlighted Association, to which the BaFin should pay attention to a practice-oriented and risk-oriented regulatory framework for the crypto-market one step closer.

By Christopher clover
23. November 2018 share Facebook Twitter LinkedIn xing mail

On 18. October, the Federal financial Supervisory authority published the draft of a circular entitled "duties of Care in connection with virtual currencies – hints for a proper risk-based approach". The draft was addressed to all credit, financial services, payment and E-money institutions. This could 19. November, the BaFin's your opinion on the circular design. The Letter includes four key aspects.

Four things to consider

1. Cash receipts, which obviously go back to a crypto Deal, may require additional ("comprehensible") to the information of the account holder about the origin of the money (incl. At the time of purchase). In addition, could the evidence of the origin of the for the purchase funds used. BaFin recommends this step, but only for individual cases.

2. Who makes the trade with Bitcoin & co. is a business, you must be aware of the following: The commercial trade is subject to authorisation according to §32 of the German banking act. The contractual arrangement determines whether the Business is classified as banking business or financial services. In Germany, crypto-exchanges of money are already subject to laundering duties, and must also currencies an account of the origin of the offered Crypto, as well as the can drop used for the purchase money.

3. Anonymity or Pseudonymity is currencies, according to the BaFin, a further risk factor when dealing with Crypto. In particular, the use of mixers or Tumblers make it difficult to Trace transactions on the Blockchain. Also, the use of Prepaid credit cards makes it difficult to establish the origin of the funds, which were used to purchase crypto-currencies.

4. It is the obligation of a suspicious transaction report there is a suspect (within the meaning of section 43 of the natural gas act) should be transaction, "recognizable" in connection with crypto-currencies.

by the Deadline of the Blockchain Association submitted its comments in financial supervision. It is the Blockchain-experts, above all, a clear differentiation of the addressees. Also, the different nature and purposes of digital Token after the view of the Federal Association of the BaFin-design to be inadequate.

Who is being addressed?

the speech was in the Letter from the BaFin about the "Obliged entities". The Blockchain Association asks for further specification. Although the BaFin write in the letter accompanying the letter, that credit institutions should provide assistance to the issues of crypto-regulation. However, the addressed circular also payment, E-money and financial services institutions. The Association asks for a clean delimitation and criticised Committed to the concept of "money laundering law" as a package. A differentiated view of the various institutions is also needed, so that it is clear who is exactly addressed by the letter. So goods dealer "money laundering, for example, is not legally Obligated" under the supervision of the BaFin. An institution-specific differentiation was in terms of a practice - and risk-based regulation of the market, argues the Association.

All Token-tarred with the same brush

another Problem is the Blockchain Association is therefore, such as BaFin "virtual currencies" is defined. Specifically, the BaFin refers in its Definition of Bitcoin & co. on the fifth EU money laundering Directive. After this it is a virtual currency

1. a digital representation of a value that has been issued by any Central Bank or public body, or guarantees and

2. not necessarily to a statutory currency is pegged and does not have the legal Status of a currency, or of money,

3. but by natural or legal persons as a means of exchange is accepted, and

4. electronically transferred, and traded.

The Association argues that virtually all of the tokens, the points 1, 2, and 4; point 3 leave, however, to a large game room for interpretation. So also Token within the Definition of the means of payment which are not actually scheduled for could. The Association notes that the Definition based only on virtual currencies, tokens which Utility, however, does not include:

"in view of the wide scope of the Definition in Other respects, such a clarification is necessary. Otherwise, the so-called Utility would be captured Token, if you have a voucher function and, therefore, as a means of payment anyway, but as a medium of exchange on a platform to be accepted. Since the 5. Anti-money laundering Directive, and is also based around design write-but just not 'Token' in General, but on virtual currencies, it is our understanding that, for example, Utility-Token are to be excluded from the scope."

The Association calls for a total of greater selectivity, both in terms of the addressees, as well as on the different forms of tokens.

The Problem with the "visibility"

is In the circular design of the BaFin also by the criterion of "visibility" of the speech. Here, too, the Association sees a need for clarification. When is based on a receipt of payment "recognisable" exchange of crypto-currencies? Is more difficult to implement with a proof of the use of the Tumbler or the Mixer Services. This was not provided by the Institute. It looks similar with the use of Prepaid credit cards for the purchase of crypto-currencies. As for the Institute, much is at stake, recommends the Association of the Blockchain here, too, clarification on the part of the BaFin:

"questions arise as to the exact obligations of the Institute are stocks against the Backdrop of the threat of a criminal offence under the money laundering law is not reasonable."

Also in the theme of the commercial trade and the Exchange of crypto-currencies, the Federation sees a need for improvement. So go out of the BaFin-design-nicht, that, for example, in the case of ICOs, where existing Token with new Token to be exchanged, the editor of the new Token the Issuer's privilege to enjoy, and thus not by the Permission of section 32 of the KWG is concerned.

The complete response letter from the Blockchain Federal Association can be viewed here.

Whether the BaFin may, however, decide at all about how it is in Bitcoin a means of payment, it is not, it was the end of September, provided by the Berlin chamber court in question.