European Union

MiCa, AMLA and EU’s ‘wild west’ problem: Law Decoded, June 27–July 4

The Markets in Crypto-Assets passed the Tripartite negotiations, while the European Union anticipates a new body for AML regulation.

According to European parliament member and rapporteur for the Markets in Crypto-Assets (MiCA) regulation Stefan Berger, the deal on landmark pan-European Union regulation has finally been struck amid the Tripartite negotiations. It “will put an end to the crypto wild west,” as French Minister for the Economy Bruno Le Maire hopes. Still, while raising a modest optimism among some stakeholders, MiCa’s final draft will surely make life harder for others. 

A prime example here is the case with stablecoins, which would get a daily transaction cap of 200 million euros under the new regulation. With Tether (USDT) and USD Coin’s (USDC) 24-hour daily volumes standing at 48.13 billion euros ($49.30 billion) and 5.40 billion euros ($5.53 billion), respectively, the new guidelines could be interpreted as a sort of indirect ban on stablecoins. The provisional agreement will also see crypto asset providers (CASPs) needing authorization to operate in the EU, with the largest CASPS to be monitored by the European Securities and Markets Authority (ESMA).

European lawmakers clearly don’t like a “wild west” — to the point when they’re attaching the variations of this metaphor to almost anything they deem as in need of a fix. The same last week, European Parliament member Ernest Urtasun claimed to put an end to the “wild west of unregulated crypto” with a European Council agreement to form an Anti-Money Laundering (AML) body that will have the authority to supervise certain CASPs. The new regulator would probably get an obvious name of AMLA.

Surprise twist in Iowa

Two weeks between being fined for selling the unregistered securities and getting the very license it lacked — that’s what happened with a crypto lending platform BlockFi in the state of Iowa. The new license is a glimmer of good news for BlockFi, which was among the lending firms forced to liquidate some of the positions from venture firm Three Arrow Capital (3AC), with the latter unable to meet a margin call on its Bitcoin borrowings. 

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Grayscale goes to court

Grayscale Investments has launched a legal challenge against the United States Securities and Exchange Commission (SEC) after being denied its application to convert its Grayscale Bitcoin Trust (GBTC) into a spot-based Bitcoin exchange-traded fund (ETF). While the lawsuit has been filed to the United States Court of Appeals for the District of Columbia Circuit, a court ruling on the matter is not expected until Q3 2023 to Q1 2024, meaning that we may not see the GBTC going forward any time soon. 

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How much income does regulation bring?

Surprising as it may sound, large regulatory landmarks correlate with crypto market leaps — at least according to financial services company New York Digital Investment Group (NYDIG), which studied Bitcoin (BTC) prices at regular intervals following regulatory events affecting digital asset taxation, accounting and payments as well as decisions on the legality of service providers and the digital assets themselves. The results are somehow impressive: In the Americas, Bitcoin prices rose 160.4% in absolute terms 365 days after regulatory events and 32.3% in relative terms; in Europe, at 180.1% and 52.0%, respectively. 

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ECB officials prepare for ‘harmonization’ of crypto regulations: Report

Regulators from 19 EU member states will reportedly attend a supervisory board meeting in July to discuss MiCA and its possible implementation.

The European Central Bank, or ECB, will reportedly be preparing to implement a new law by warning European Union member states about the necessity of harmonizing regulations for crypto.

According to a Sunday report from the Financial Times, the ECB was concerned about the possible regulatory overlap between respective central banks in the EU and crypto companies as officials prepare to implement the Markets in Crypto-Assets, or MiCA, framework. The European Parliament, European Commission and European Council reached an agreement on June 30 to bring crypto issuers and service providers within their jurisdictional control under a single regulatory framework.

Regulators from 19 EU member states will reportedly attend a supervisory board meeting in July to discuss MiCA and its possible implementation. Once implemented, the law will require asset service providers to adhere to certain requirements aimed at protecting investors as well as warn clients about the potential risk of investing in a volatile crypto market. EU officials will also have an 18-month review period to assess the proposed regulatory framework and determine whether it includes other crypto-related products like nonfungible tokens (NFTs).

“It’s very challenging,” reportedly said an unnamed national regulator. “With MiCA 18 months away, are you better to say, ‘until it’s in, do what you like, there’s no regulation’ or are you better to try to get a handle on it?”

Related: Consolidation and centralization: How Europe’s new AML regulation will affect crypto

Before the passage of MiCA, financial regulators from individual European Union member states largely had to handle crypto regulation within their own borders — though officials recently reached an agreement on forming an authority for supervising Anti-Money Laundering regulations for crypto firms. In Germany, the Federal Financial Supervisory Authority, or BaFin, is responsible for issuing licenses to crypto firms interested in offering services within the country.

ECB officials prepare for ‘harmonization’ of crypto regulations: Report

Regulators from 19 EU member states will reportedly attend a supervisory board meeting in July to discuss MiCA and its possible implementation.

The European Central Bank, or ECB, will reportedly be preparing to implement a new law by warning European Union member states about the necessity of harmonizing regulations for crypto.

According to a Sunday report from the Financial Times, the ECB was concerned about possible regulatory overlap between respective central banks in the EU and crypto companies as officials prepare to implement the Markets in Crypto-Assets, or MiCA, framework. The European Parliament, European Commission, and European Council reached an agreement on June 30 to bring crypto issuers and service providers within their jurisdictional control under a single regulatory framework.

Regulators from 19 EU member states will reportedly attend a supervisory board meeting in July to discuss MiCA and its possible implementation. Once implemented, the law will require asset service providers to adhere to certain requirements aimed at protecting investors as well as warn clients about the potential risk of investing in a volatile crypto market. EU officials will also have an 18-month review period to assess the proposed regulatory framework and determine whether it includes other crypto-related products like nonfungible tokens, or NFTs.

“It’s very challenging,” reportedly said an unnamed national regulator. “With MiCA 18 months away, are you better to say, ‘until it’s in, do what you like, there’s no regulation’ or are you better to try to get a handle on it?”

Related: Consolidation and centralization: How Europe’s new AML regulation will affect crypto

Before the passage of MiCA, financial regulators from individual European Union member states largely had to handle crypto regulation within their own borders — though officials recently reached an agreement on forming an authority for supervising anti-money laundering regulations for crypto firms. In Germany, the Federal Financial Supervisory Authority, or BaFin, is responsible for issuing licenses to crypto firms interested in offering services within the country.

EU agrees on MiCA regulation to crack down on crypto and stablecoins

“Europe’s upcoming crypto-assets policy framework will be to crypto what GDPR was to privacy,” says Circle chief strategy officer Dante Disparte.

Officials from the European Union have agreed on a landmark law that will make life tougher for crypto issuers and service providers under a new single regulatory framework. 

Stefan Berger, European Parliament member and rapporteur for the MiCA regulation — the person appointed to report on proceedings related to the bill — broke the news on Twitter, saying that a “balanced” deal had been struck, which has made the EU the first continent with crypto-asset regulation.

Known as the Markets in Crypto-Assets (MiCA) framework, the provisional agreement includes rules that will cover issuers of unbacked crypto assets, stablecoins, trading platforms and wallets in which crypto assets are held, according to the European Council.

Bruno Le Maire, French Minister for the Economy, Finance and Industrial and Digital Sovereignty claimed the landmark regulation “will put an end to the crypto wild west.”

Stablecoins hobbled

In the wake of the dramatic collapse of Terra, the MiCA regulation aims to protect consumers by “requesting” stablecoin issuers to build up a sufficiently liquid reserve.

In a Twitter thread, Ernest Urtasun, a member of the European Parliament, explained that reserves will have to be “legally and operationally segregated and insulated” and must also be “fully protected in case of insolvency.”

It will see a cap on stablecoins of 200 million euros in transactions per day.

Crypto Twitter users have already branded the regulation as unworkable, with 24-hour daily volumes of Tether (USDT) at $50.40 billion (48.13 billion euros) and USD Coin (USDC) at $5.66 billion (5.40 billion euros) at the time of writing. 

There would also be difficulty enforcing these rules for decentralized stablecoins, such as Dai (DAI).

The agreement came on the same day as Circle’s launch of its euro-backed stablecoin — Euro Coin (EUROC).

Consumer protections

Crypto-asset service providers (CASPs) will be required to adhere to strict requirements aimed at protecting consumers and can also be held liable if they lose investors’ crypto-assets.

Urtasun explained that trading platforms will be required to provide a white paper for any tokens that don’t have a clear issuer, such as Bitcoin (BTC), and they will be liable for any misleading information.

There will also be warnings for consumers about risks of losses associated with crypto assets and rules on fair marketing communications.

Market manipulation and insider trading is also of focus, according to a statement from the European Council:

“MiCA will also cover any type of market abuse related to any type of transaction or service, notably for market manipulation and insider dealing.”

The new sheriff: ESMA

The provisional agreement will also see CASPs needing authorization in order to operate in the EU, with the largest CASPS to be monitored by the European Securities and Markets Authority (ESMA).

ESMA is an independent securities markets regulator in the EU, which was founded in 2011.

The new law does not include a ban on proof-of-work (PoW) technologies or include nonfungible tokens (NFTs) within its scope.

However, in regard to NFTs, the European Commission said it will be looking into this over the next 18 months and could create a “proportionate and horizontal legislative proposal” to address emerging risks of the market if it deems necessary.

Related: Coinbase seeking aggressive European expansion amid crypto winter

“Europe’s upcoming crypto-assets policy framework will be to crypto what GDPR was to privacy,” added Circle’s Disparte.

The provisional agreement is still subject to approval by the Council and the European Parliament before headed for formal adoption.

EU officials reach agreement on AML authority for supervising crypto firms

“We are putting an end to the wild west of unregulated crypto, closing major loopholes in the European anti-money laundering rules,” said European Parliament member Ernest Urtasun.

The European Council has reached an agreement to form an Anti-Money Laundering (AML) body that will have the authority to supervise certain crypto asset service providers, or CASPs.

In a Wednesday announcement, the council said it had agreed on a partial position of a proposal to launch a dedicated Anti-Money Laundering Authority, or AMLA. According to the regulatory body, the AML body will have the authority to supervise “high-risk and cross-border financial entities” including crypto firms — “if they are considered risky.”

European Parliament member Ondřej Kovařík said European Union officials had also reached a “provisional political agreement” on the government body’s Transfer of Funds Regulation. Not all the details of the revision are clear at the time of publication, but Cointelegraph reported that a March draft of the regulation could require crypto service providers to collect personal data related to transfers of any size made to and from unhosted wallets, as well as potentially verify their accuracy.

“We are putting an end to the wild west of unregulated crypto, closing major loopholes in the European anti-money laundering rules,” said European Parliament member Ernest Urtasun. “The rules won’t apply to P2P transfers where there is no obliged entity involved […] CASPs will be required to collect information and apply enhanced due diligence measures with respect to all transfers involving unhosted wallets, on a risk basis.”

Related: European crypto regulatory framework goes to three-way consideration without PoW ban

First proposed in July 2021, the AMLA should be operational in 2024 and “start the work of direct supervision slightly later,” according to the European Commission. The financial watchdog will be one of the first regulatory institutions with the authority to oversee money laundering across large regions of Europe, coordinating with respective countries’ financial intelligence units and working with local regulators.

ECB may cap digital euro at 1.5T tokens — Executive board member

“Keeping total digital euro holdings between one trillion and one and a half trillion euro would avoid negative effects for the financial system,” said Fabio Panetta.

Fabio Panetta, an executive board member of the European Central Bank, or ECB, proposed the central bank limit the total holdings of a digital euro in an effort to prevent the digital currency from being used as a form of investment.

In a Wednesday speech for the Committee on Economic and Monetary Affairs of the European Parliament, Panetta hinted the ECB could cap the number of digital euros between 1 and 1.5 trillion tokens. The proposed limit would be part of an effort aiming to disincentivize residents from HODLing tokens as an investment like crypto assets, with “with larger holdings subject to less attractive rates.”

“Our preliminary analyses indicate that keeping total digital euro holdings between one trillion and one and a half trillion euro would avoid negative effects for the financial system and monetary policy,” said Panetta. “This amount would be comparable with the current holdings of banknotes in circulation. As the population of the euro area is currently around 340 million, this would allow for holdings of around 3,000 to 4,000 digital euro per capita.”

Panetta also reiterated that companies in the private sector would likely need to coordinate with public officials for an effective rollout of a digital euro. He has previously suggested the importance of the CBDC being accepted in both physical and online stores and allowing easy person-to-person payments.

Related: ECB, Eurosystem begins experimental prototyping of digital euro customer interface

The ECB announced in July 2021 that it had launched a two-year investigation phase for the CBDC, with a possible release in 2026. In May, the central bank released a working paper suggesting that a “CBDC with anonymity” may be a preferable option when compared with traditional digital payments, but many in the EU are still opposed to a digital euro.

EU commissioner reiterates need for ‘regulating all crypto-assets’

Mairead McGuinness said that she planned to discuss a compromise through the MiCA proposal currently under review in the EU.

Mairead McGuinness, the Commissioner for Financial Services, Financial Stability and Capital Markets Union at the European Commission, is moving forward with a discussion on regulating cryptocurrencies amid three major events in the space.

In written remarks for a speech in Brussels on Tuesday, McGuinness said the Celsius Network’s recent suspension of withdrawals, as well as the crash of Terra (originally LUNA, now LUNA Classic, or LUNC), show the need for crypto-asset regulation in the European Union. She added that ongoing concerns about crypto potentially being used to circumvent sanctions on Russia were also a factor.

“Regulating all crypto-assets — whether they’re unbacked crypto-assets or so-called “stablecoins — and crypto-asset service providers is necessary,” said McGuinness. “Sanctions implementation could be facilitated if our framework on crypto was in place, and if all crypto-asset service providers were regulated entities and subject to effective supervision in the European Union.”

The EU commissioner added that she planned to discuss a “political compromise” under the French government through the Markets in Crypto Assets, or MiCA, proposal currently being reviewed by the European Parliament, the European Commission and the European Council:

“MiCA rules will be the right tool to address the concerns on consumer protection, market integrity and financial stability. This is something that is so urgent given recent developments.”

Under the MiCA draft proposal, all crypto firms providing services within the European Union would likely be subject to the same rules. Initially, the measure was idelayed due to concerns about a potential ban on proof-of-work cryptocurrencies but went out of committee in March.

Related: EU commissioner calls for global coordination on crypto regulation

In addition to its work on regulating digital assets within the EU, the commission will on Thursday close a consultation launched in April for financial services specialists to weigh in on the potential rollout of a central bank digital currency. McGuinness said in May the EU commission would “stand ready” to introduce legislation behind a digital euro.

DeFi pulls the curtain on financial magic, says EU Blockchain Observatory expert

A researcher from the University of Nicosia elaborates on key controversies of decentralized finance.

As decentralized finance continues its victorious march — although the road is sometimes bumpy — some significant questions on its nature remain. How can DeFi applications be protected from becoming nonoperational under extreme stress? Is it really decentralized if some individuals have way more governance tokens than others? Does the anonymous culture compromise its transparency?

A recent report from the EU Blockchain Observatory and Forum elaborates on these questions and many others around DeFi. It contains eight sections and covers a range of topics, from the fundamental definition of DeFi to its technical, financial and procedural risks. Conducted by an international team of researchers, the report formulates some important conclusions that will hopefully make their way to the eyes and ears of legislators.

The researchers highlight DeFi’s potential to increase the security, efficiency, transparency, accessibility, openness and interoperability of financial services in comparison with the traditional financial system, and they suggest a new approach toward regulation — one that is based on the activity of separate actors rather than their shared technical status. The report states:

“As with any regulation, measures should be fair, efficient, effective and enforceable. A combination of self-regulation and supervisory enforced regulation will gradually give rise to a more regulated DeFi 2.0 emerging from the current nascent DeFi 1.0 ecosystem.”

Cointelegraph spoke with one of the report’s authors, Lambis Dionysopoulos — a researcher at the University of Nicosia and a member of the EU Blockchain Observatory and Forum — to learn more about the most intriguing parts of the document. 

Cointelegraph: How should regulators approach information asymmetry between professionals and retail users?

Lambis Dionysopoulos: I would argue that regulatory intervention is not needed for that. Blockchain is a unique technology in the level of transparency and intricacy of information it can provide to anyone at no cost. The trade-offs for achieving that level of transparency are often significant to the extent that decentralized blockchains are often criticized as inefficient or redundant. However, this is necessary for providing an alternative to the existing financial system, whose opaqueness is the root of many evils.

In traditional finance, this opaqueness is given. The everyday saver, charity donor or voter has no way to know if their funds are dutifully managed by the bank or support their preferred cause, or know who sponsored their politician and by how much. DeFi pulls the curtain on the financial magic by encoding every transaction on an immutable ledger accessible to everyone.

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Today, tools such as blockchain explorers allow anyone to trace the flow of money in the blockchain economy, gain information about the apps and services they use in the space, and make informed decisions. It is true that those with funds and advanced knowledge can, and do, take better advantage of this system. However, as the DeFi ecosystem expands, I am optimistic that new tools will emerge that will make more advanced insights available to anyone. My optimism is founded on two factors: First, it is comparatively easier to build such tools in DeFi; and second, inclusivity and openness are the ethos of the DeFi space. The role of regulators should be to facilitate this.

CT: In the report, DeFi is classified as “radical innovation,” while fintech generally is “sustaining innovation.” Could you explain these definitions and the difference between them?

LD: Sustaining or incremental innovations are improvements on existing products or procedures with the goal of better serving the same customers, often for a higher profit too. Fintech is a prime example of this. Indicatively, through e-banking, customers can open accounts faster, initiate online transactions, and gain access to electronic statements, reports and management tools.

Revolut and Venmo make splitting the bill or asking for pocket money easier. All those conveniences are often welcome and demanded by consumers, but also by companies who can find ways to monetize them. Central to sustaining innovations is a notion of linearity and certainty, meaning modest changes that result in modest improvements on how things are done as well as added value.

On the contrary, radical innovations such as DeFi are nonlinear — they are discontinuities that challenge conventional wisdom. Radical innovations are based on new technologies — they can create new markets and make new business models possible. For that reason, they also imply a high level of uncertainty, especially at the early stages. The notion that anyone can be their own bank and that openness and composability can overcome walled gardens are examples of how DeFi can be perceived as a radical innovation.

CT: Is there any data confirming the hypothesis that DeFi can help the unbanked and underbanked? It seems that DeFi is popular firstly among tech-savvy individuals from developed countries.

LD: The notion that DeFi is popular with banked and tech-savvy individuals is both true and short-sighted. For traditional financial service providers, making their services available to an individual is a question of cost-benefit. Simply put, a large portion of the planet is not worth their “investment.” Someone more suspicious might also add that depriving individuals of access to finance is a good way of keeping them subordinate — a look at who the unbanked are might support this terrifying theory.

DeFi has the potential to be different. Its global availability does not depend on the decision of a board of directors — it is how the system is built. Everyone with rudimentary internet access and a smartphone can access state-of-the-art financial services. Immutability and censorship resistance are also central to DeFi — no one can stop anyone from transacting from, or to, a specific area or with an individual. Finally, DeFi is agnostic to the intentions behind sending or receiving information. As long as someone sends or receives valid information, they are first-class citizens in the eyes of the network — irrespective of their other social status or other characteristics.

DeFi is popular with banked tech-savvy individuals for two primary reasons. Firstly, as a nascent technology, it necessitates some level of technical sophistication and thus attracts users with the luxury of acquiring this knowledge. However, there are active steps taken to reduce the barriers to entry. Social recovery and advances in UX design are only two such examples.

Secondly, and perhaps most importantly, DeFi can be lucrative. In the early stages of wild experimentation, early adopters are rewarded with high yields, handouts (airdrops) and price appreciation. This has attracted tech-savvy and finance-native individuals seeking a higher return on their investments. Market shakeouts (such as the recent events of UST/LUNA) will continue to separate the wheat from the chaff, unsustainable high yields will eventually subside, and individuals attracted to them (and only them) will seek profits elsewhere. 

CT: The report highlights the problematic aspects of the pseudonymous culture of DeFi. What possible compromises between the core principles of DeFi and the security of users do you see in the future?

LD: DeFi is not entirely homogeneous, which means that it can provide different services, with different sets of trade-offs for different people. Similar to how blockchains have to compromise either security or decentralization to increase their efficiency, DeFi applications can make choices between decentralization and efficiency or privacy and compliance to serve different needs.

We are already seeing some attempts at compliant DeFi, both in custodial stablecoins, programmable central bank digital currencies, securities settlement using blockchain, and much more, collectively also referred to as CeDeFi (centralized decentralized finance). The trade-off is explicitly included in the name. Products with different trade-offs will continue to exist to serve consumer needs. However, I hope this interview makes a case for decentralization and security, even if that means challenging conventions.

CT: The report states that DeFi has so far had a minimal impact on the real economy, with use cases limited to crypto markets. What use cases do you see outside these markets?

LD: DeFi has the potential to influence the real world directly and indirectly. Starting with the former, as we become better at making complex technologies more accessible, the whole suite of DeFi tools can be made available to everyone. International payments and remittances are the first low-hanging fruit. The borderless nature of blockchains, in conjunction with relatively low fees and reasonable transaction confirmation times, makes them a contender for international payments.

With advances such as layer 2, transaction throughput can rival that of large financial providers such as Visa or Mastercard, making cryptocurrency a compelling alternative for everyday transactions as well. What could follow are basic financial services, such as savings accounts, lending, borrowing and derivatives trading. Blockchain-backed microfinancing and regenerative financing are also gaining traction. Similarly, DAOs can introduce new ways of organizing communities. NFTs can also be, and have been, more appealing to the wider market.

At the same time, the idea of using concepts developed in the DeFi space to increase efficiency in the traditional financial system is gaining ground. Such use cases include, but are not limited to, smart contracts and programmable money, as well as the use of the tamper-evident and transparent properties of blockchain for the monitoring of financial activity and the implementation of more effective monetary policy.

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While each of those individual components is important in its own respect, they are also parts of a bigger transition to Web3. In that respect, I would argue that the real question is not how much crypto can influence the “real” economy but how much it will blur the line between what we consider the “real” and “crypto” economy.

CT: The report makes a reserved recommendation to regulate DeFi actors by their activity rather than use an entity-based approach. How would this regulatory structure function?

LD: In the world of DeFi, entities look much different than what we are used to. They are not rigidly defined structures. Instead, they comprise individuals (and entities, too) that come together in decentralized autonomous organizations to vote on proposals about how the “entity” will be involved. Their activities are not well defined. They can resemble banks, clearing houses, a public square, charities and casinos, often all at the same time. In DeFi, there is no single entity to be held accountable. Due to its global nature, it is also impossible to apply a single country’s legislation.

For this reason, our conventional wisdom of financial regulation simply does not apply to DeFi. Moving to an activity-based regulation makes more sense and can be facilitated by regulation at the individual level and the DeFi on-ramps. That being said, there are definitely bad actors using DeFi as an excuse to sell repackaged traditional finance products, only less secure and less regulated — or even worse, outright scams. Regulatory certainty can make it harder for them to seek asylum in DeFi.

Lithuania aims to tighten crypto regulation and ban anonymous accounts

The country decided to act in advance of upcoming EU regulations that could effectively ban noncustodial wallets.

In its efforts to fight money laundering risks and the possible schemes of Russian elites circumventing financial sanctions, the 2.8-million nation of Lithuania is planning to tighten its scrutiny over crypto. 

As the local Ministry of Finance announced on Wednesday, various ministries of the Lithuanian government approved legal amendments to Anti-Money Laundering (AML) and countering the financing of terrorism in the crypto sector. The amendments to the current law — should they later be approved by the Seimas, Lithuania’s legislature — would stiffen the guidelines for user identification and prohibit anonymous accounts.

The new regulations would also tighten up demands for exchange operators — from Jan. 1, 2023, they will be obliged to register as a corporate body with nominal capital amounting to no less than 125,000 euros. The senior management of such companies would have to be permanent residents of Lithuania.

The announcement justifies the tightened regulations with the accelerating growth of the crypto industry and specific geopolitical risks:

“More nuanced regulation of the suppliers of crypto-services is also important considering the international regulatory tendencies and the geopolitical situation in the region when many Western countries impose financial and other sanctions on Russian Federation and Belarus.”

In her official commentary, Minister of Finance Gintarė Skaistė explained that the steps on the national level are taken in accordance with the upcoming pan-European regulations. The announcement underscores the swift rise of crypto companies in the country after a regulatory tightening in neighboring Estonia — there were only eight new crypto companies in 2020, while 2021 saw the appearance of 188 new entities.

Related: For the crypto industry, supporting sanctions is an opportunity to rebrand

Estonia announced its update on the AML act in September 2021. The updated law effectively banned noncustodial software wallets and decentralized finance products. In April 2022, the European Parliament approved an AML regulatory package that could place severe disclosure requirements on transactions between noncustodial wallets and crypto exchanges in the European Union.

Speaking to Cointelegraph, a representative of the Ministry of Finance specified that the new legislation doesn’t intend to close doors to any international crypto firms but, rather, stresses that these businesses must have sound business models and comply with the relevant regulations:

“The new requirement for crypto companies to have a senior manager that would be a permanent resident of Lithuania is orientated towards better communication with supervisory institutions and ensuring the connection to the local market.”

As the speaker explained, the draft law is still to be adopted by the parliament. Amendments to the law are expected to enter into force on Nov. 1, 2022. The majority of key provisions would take effect from Jan. 1, 2023. 

A life after crime: What happens to crypto seized in criminal investigations?

Like with any kind of property, law enforcement has the right to sell your coins and spend the money.

Earlier this year, during the annual Queen’s Speech in the United Kingdom, Prince Charles informed the Parliament about two bills. One of them — the Economic Crime and Corporate Transparency Bill — would expand the government’s powers to seize and recover crypto assets.

Meanwhile, the United States Internal Revenue Service (IRS) seized more than $3 billion worth of crypto in 2021.

As digital currencies’ monetary stock grows and enforcers’ scrutiny over the maturing industry tightens, the amount of seized funds will inevitably increase.

But where do these funds go, assuming they aren’t returned to the victims of scams and fraud? Are there auctions, like there are for forfeited property? Or are these coins destined to be stored on some kind of special wallet, which might end up as a perfect investment fund for law enforcement agencies? Cointelegraph tried to get some answers.

The dark roots of civil forfeiture

For the newcomers in the room, cryptocurrency is money. In that sense, the destiny of seized crypto shouldn’t differ much from other confiscated money or property. Civil forfeiture, the forceful taking of assets from individuals or companies allegedly involved in illegal activity, is a rather controversial law enforcement practice. In the U.S., it first became common practice in the 1980s as a part of the war on drugs, and it has been the target of vocal critics ever since. 

In the U.S., any seized assets become the permanent property of the government if a prosecutor can prove that the assets are connected with criminal activity or if nobody demands their return. In some cases, the assets are returned to their owner as a part of a plea deal with the prosecution. Some estimate, however, that just 1% of seized assets are ever returned.

How do law enforcement agencies use the money they don’t have to return? They spend it on whatever they want or need, such as exercise equipment, squad cars, jails and military hardware. In 2001, for example, the St. Louis County Police Department used $170,000 to buy a BEAR (Ballistic Engineered Armored Response) tactical vehicle. In 2011, it spent $400,000 on helicopter equipment. The Washington Post analyzed more than 43,000 forfeiture reports and reported that the seized money was spent on things as varying as an armored personnel carrier ($227,000), a Sheriff’s Award Banquet ($4,600) and even hiring a clown ($225) to “improve community relations.”

Some states, like Missouri, legally oblige that seized funds be allocated to schools, but as the Pulitzer Center points out, law enforcement agencies keep almost all of the money using the federal Equitable Sharing Program loophole. In 2015, U.S. Attorney General Eric Holder issued an order prohibiting federal agency forfeiture, but his successor under the administration of President Donald Trump, Jeff Sessions, repealed it, calling it “a key tool that helps law enforcement defund organized crime.”

Seized coins’ destiny in the U.S., U.K. and EU

While none of the experts who spoke to Cointelegraph could speak to the technical aspects of storing seized crypto assets, the rest of the procedure tends to be pretty much the same as with non-crypto assets.

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Don Fort, a former chief of the IRS Criminal Investigation Division who heads the investigations department at law firm Kostelanetz & Fink, told Cointelegraph that the only principal distinction is the necessity to auction the digital assets off:

“At the federal level, seized cryptocurrency goes to either the Department of Justice or Department of Treasury Forfeiture Fund. Once the crypto funds are auctioned off by one of the forfeiture funds, the funds can be used by the respective federal law enforcement agencies.”

Fort explained that as with non-crypto funds, the agency requesting forfeited funds has to submit a specific plan or initiative to acclaim the money and spend it, and the plan must be approved by the Department of Justice before the funds can be allocated to the agency.

A similar procedure regulates the allocation of seized crypto in the United Kingdom. The Proceeds of Crime Act 2002 outlines how cryptocurrency proceeds of crime should be dealt with once seized. Tony Dhanjal, head of tax at Koinly, explained to Cointelegraph:

“When it generally comes to confiscated assets — as opposed to cash — the Home Office gets 50%, and the other 50% is split between the Police, Crown Prosecution Services and the Courts. There is also leeway for some of the confiscated assets to be returned to the victims of crypto crime.”

However, Dhanjal believes the legislation needs to be updated to deal specifically with crypto assets, as they are a “unique challenge for crime agencies as anything that has ever come before it.” The aforementioned announcement of the Economic Crime and Corporate Transparency Bill didn’t include any specifics aside from the intention to “create powers to more quickly and easily seize and recover crypto assets,” but an update on the procedure of seized crypto allocation is surely something to be desired.

As it often goes for regulatory policies, the European Union is more complicated. While there are systems of mutual assistance in criminal matters within the EU, criminal legislation falls within the authority of the member states, and there is no single agency to coordinate enforcement or seizure.

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Hence, there are various ways seized crypto is handled. Thibault Verbiest, a Paris-based partner at law firm Metalaw, cited several cases to Cointelegraph. In France, for example, the Agency for the Recovery and Management of Seized and Confiscated Assets (AGRASC) is responsible for managing seized property. Verbiest stated:

“When, as a result of a judicial investigation, assets have been seized, they are, by decision of the public prosecutor, transferred to the AGRASC, which will decide, in accordance with Articles 41-5 and 99-2 of the Code of Criminal Procedure, the fate of these assets; they will be sold at public auction or destroyed.”

But it is not always possible to seize crypto assets. In 2021, 611 Bitcoin (BTC) was sold at a public auction by the AGRASC after it seized the cold storage devices used by prosecuted people, who had stored their encryption keys on a USB stick. As Verbiest explained:

“This was made possible by the fact that the aforementioned articles allow seizures on the movable property, so the USB stick (and its content) could be seized. The case would have been different if the crypto funds had been stored on a third-party server via a delegated storage service, as the aforementioned texts do not allow seizures of intangible property.”

With the practice of property forfeiture remaining highly controversial — with some even preferring to call it “highway robbery” — cryptocurrencies provide their owners at least a relative degree of protection. Still, technology aside, it’s in the area of policy where both coiners and no-coiners will have to fight against the long tradition of law enforcement overreach.