AUSTRIA Law and Practice

Contributed by: Markus Fellner, Florian Kranebitter and Florian Henöckl, Fellner Wratzfeld & Partners

12.4 Regulation of “Issuers” of Blockchain Assets

According to the interpretation of the FMA, blockchain assets, such as coins, are not subject to their supervision. However, regulatory provisions may still be applicable depending on the specific activity being performed.

12.5 Regulation of Blockchain Asset Trading Platforms

Platforms that allow the trading of blockchain assets are required to take a large number of legal provisions into account due to the previously vague legal classification of this activity. A precise definition of the activity performed is of central importance in order to identify and comply with any legal provisions from a wide range of legal areas. Platforms that allow for the trading of blockchain assets such as cryptocurrencies and at the same time process payments can fall within the scope of the Payment Services Act 2018 (ZaDiG 2018).

12.6 Regulation of Funds

In the case of investments based on capital collected from a number of investors with a corresponding investment strategy, there is the possibility that a licence is required under the Alternative Investment Fund Manager Act. A prospectus requirement according to the Prospectus Regulation is possible, the prerequisite being that it is a public offer.

12.7 Virtual Currencies

As shown in 12.2 Local Regulators’ Approach to Blockchain, virtual currencies are the area that has received the most attention so far, and in which the FMA has dealt with the subject in detail.

12.8 Impact of Regulation on “DeFi” Platforms

There is no definition of “decentralised finance” in Austrian regulation.

12.9 Non-fungible Tokens (NFTs)

Non-fungible tokens (NFTs) are not regulated in detail. However, practice has shown that there is a fundamental need for regulation, since questions such as the pledging of NFTs have arisen that cannot be clearly resolved.

13. Open Banking

13.1 Regulation of Open Banking

The Second Payment Services Directive (PSD2) sets the requirements for payment service providers. In the current version, this Directive also affects open banking by granting access to payment systems and accounts. Access is provided to third-party services to access account information or initiate transactions on their behalf.

13.2 Concerns Raised by Open Banking

Open banking in accordance with the regulatory requirements always requires the consent of the customer with regard to the transfer of data. In order to meet the legal requirements in this area, the general data protection regulations as well as specific regulatory provisions, such as banking secrecy, must be taken into account. The data protection declarations, the declarations of release from banking secrecy – and, if necessary, a justification for breaching banking secrecy for other reasons – must be precisely adapted in individual cases and, if necessary, sufficiently justified.