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Everyone may trade in Germany without license with crypto currencies, judges a Berlin court and places itself against the financial supervision BAFIN. What are the consequences?
The Berlin Court of Appeal has ruled that Bitcoins are not financial instruments, i.e. they do not fall under the provisions of the German Banking Act (KWG). If this case law prevails, the Federal Financial Supervisory Authority (BaFin) will be the big loser, because in this case the authority would no longer have to be asked for permission for business models related to Bitcoins.
What has happened? In a third instance, the Court of Appeal heard the case of an operator of a Bitcoin trading platform. He did not have the permission of BaFin in accordance with the KWG. Therefore, the Amtsgericht Berlin Tiergarten had sentenced him to a fine in the first instance pursuant to § 54 (1) No. 2, (2) KWG. However, the second instance, the Berlin Regional Court, had acquitted the defendant on appeal. The Court of Appeal, as the next higher instance, confirmed this acquittal with its judgment of 25 September 2018 and now explained in detail why Bitcoins are not subject to the provisions of the KWG: Bitcoins are simply not so-called financial instruments. However, this term is used by many of the KWG's permitted acts.
In particular, the decision contradicts the previous view of BaFin. In one of its bulletins, the authority has so far confirmed that Bitcoins are so-called units of account and thus financial instruments.
By Markus Kaulartz
Markus Kaulartz ist Rechtsanwalt bei CMS Deutschland und hat sich auf IT-Recht sowie IT-Sicherheit und Datenschutz spezialisiert. Er widmet sich insbesondere Rechtsfragen von Unternehmen und Startups in den Bereichen Blockchain, AI, Industrie 4.0, FinTech, IoT und Big Data.
