Analysis of the legal qualification of cryptocurrency derivatives
The AMF has carried out a legal analysis of cryptocurrency derivatives. The process of reasoning is twofold: on the one hand, to determine the legal qualification of the notion of "derivative" in the context of cryptocurrency derivatives and on the other, to consider whether a cryptocurrency could be legally regarded as an eligible underlying.
In response to the cryptocurrency boom, many platforms offering forex derivatives have expanded their product ranges. AMF staff have noted the launch of new instruments, including options, contracts for difference (CFDs) and rolling spot forex (margin trading) products, whose underlyings are cryptocurrencies such as bitcoin, ether and ripple. These products are being marketed by platforms conducting business in France through a European passport, either as branches or under the freedom to provide services’ framework.
The AMF has conducted a legal analysis to determine whether these participants need to comply with the regulations applicable to financial instruments. If these products are classified as financial instruments, they become subject to the rules of the Monetary and Financial Code (MFC) as regards with regard to authorisation to provide investment services and business conduct requirements, to obligations under the European Market Infrastructure Regulation (EMIR) of 4 July 2012 (particularly the obligation to report transactions to a trade repository) and to the provisions of MFC Article L. 533-12-7, which bans the advertising of certain financial contracts.
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