Portuguese DLT Pilot Regime in force – Decree Law no. 66/2023
The new EU Regulation 2022/858 of the European Parliament and the Council on a pilot regime for market infrastructures based on distributed ledger technology (DLT) entered into force on March 23rd, 2023.
The DLT Regulation focuses on creating a pilot framework for overseeing crypto-assets that meet the criteria of financial instruments within the European Union. Simultaneously, it addresses the functioning of market infrastructures utilizing distributed ledger technology, promoting digital innovation for the benefit of consumers and market efficiency. Additionally, it aims to position Europe as a prominent global digital participant.
It confronts the issues emerging from financial instruments’ “tokenization” process. These challenges include safeguarding investors, maintaining market integrity, considering energy consumption, and ensuring financial stability. The concept of “tokenization” pertains to crypto-assets represented on distributed ledgers and conventional financial instruments that are transformed into tokenized versions using distributed ledgers.
Subsequently, on August 8th, 2023, Portugal enacted Decree-Law no. 66/2023, which implements the new EU pilot scheme for market infrastructures based on DLT. The new Portuguese DLT Pilot regime provides more legal certainty and flexibility to market users wishing to operate on a DLT-based market infrastructure by establishing specific authorization requirements.
The Portuguese Securities Market Commission (CMVM) is appointed as the national competent authority to supervise any DLT pilot regime implementation matter. CMVM shall have the power to grant or revoke the specific authorization for entities to operate a multilateral negotiation or securities settlement system based on DLT.
In terms of liability and sanctions, the Portuguese Securities Code already provides for the entire regime applicable to both procedural and substantive matters, including particular infringements.
The definition of “financial instrument” in the existing EU Directive 2015/65 is now amended by the EU DLT Pilot Regime. However, the actual scope of application of the Portuguese Securities Code will remain the same.
Licensed operators of DTL based-market infrastructures are authorized to:
- Provide registration and deposit services for DLT financial instruments;
- Manage multilateral negotiation systems;
- Manage securities settlement systems;
- Receive, transmit and execute orders on behalf third parties;
- Manage third party portfolios;
- Trade on own account.
Financial instruments admitted to negotiation on DLT-based-market infrastructures are not obliged to integrate the centralized system like book-entry securities under the Portuguese Securities Code.
DLT based-market infrastructures are now able to choose one of the registration methods referred to in Article 61 of the Portuguese Securities Code, in particular:
1) An account opened with a financial intermediary integrated into a centralized system; or
2) An account opened with a single financial intermediary indicated by the issuer; or
3) An account opened with the issuer or a financial intermediary representing the issuer.
This new regulation represents a considerable step in protecting market participants wishing to operate on a DLT-based market basis.
Our FinTech and Blockchain team is experienced in assisting businesses navigating the regulatory landscape of the crypto industry.
Disclaimer
This publication or document contains general information and is not intended to be comprehensive nor to provide legal or tax advice or services. It should not be acted on or relied upon or used as a basis for any decision or action that may affect you or your business. Professional legal advice should be requested for specific cases. We do not undertake any continuing obligation to advise on future legal amendments, or of the impact on the conclusions herein. Prior results do not guarantee a similar outcome. The contents of this publication or document may not be reproduced, in whole or in part, without the express consent of GFDL Advogados.
