The Brazilian Securities and Exchange Commission (CVM) published a series of guidelines on the cryptoactive market.
The Securities and Exchange Commission (CVM) published Guidance Opinion 40, which consolidates the understanding of the rules applicable to crypto assets considered as securities.
The document also presents the limits of action of the regulator, indicating the possible ways to regulate, inspect, supervise and sanction market agents.
“The opinion is a recommendation and market orientation, with the aim of guaranteeing greater predictability and security for all, in addition to contributing to the protection of investors and popular savings, as well as promoting a favorable environment for the development of the crypto economy, with integrity and adherence to the relevant constitutional and legal principles”, says the president of the CVM, João Pedro Nascimento.
With this ruling, the CVM seeks greater transparency in relation to cryptos, in addition to assessing the information disclosure regime.
Nascimento highlights that the municipality has followed and participated in various discussions on the current demand for regulation of cryptocurrencies in Brazil, including Bill 4401, which is pending in the Legislative. If approved by the Chamber of Deputies, the next step is the presidential sanction.
“The CVM is attentive to the regulator’s area of competence and, when the time comes, will work on the appropriate regulation – as regards the capital market”, adds Nascimento.
Cryptoactives and Tokenization
The municipality is attentive to the global scenario and recognizes that the regulation of crypto assets is a cross-border challenge and requires guidance. Therefore, it is interested in providing information on the Brazilian capital market.
According to the document, the tokenization itself is not subject to prior approval or registration with the CVM. However, the issuers and the public offer of said tokens will be subject to the applicable regulations, as well as the administration of the organized market for the issuance and negotiation of tokens that are securities, as well as for intermediation, bookkeeping, custody, deposit centralized, registration, clearing and settlement of operations.
Characterization of Crypto Assets as Securities
Although crypto assets are not explicitly included among the values mentioned in the articles of art. 2 of Law 6,385, Guidance Opinion 40 indicates that market agents must analyze the characteristics of each cryptoactive, in order to determine if it is a security.
This occurs when it is the digital representation of one of the expected values, or falls within the open concept of value provided by law.
The CVM will identify the type of token to indicate its legal treatment. Initially, payment token, utility token, or asset-referenced token formats will be accepted, a class that includes non-fungible tokens (NFTs).
The entity reinforces that, “it remains attentive to the marginal market of crypto assets that are securities, and will adopt the appropriate legal measures to prevent and sanction any violation of the laws and regulations of the Brazilian securities market.”
Thus, they contribute “to investor protection and popular savings; prevention and fight against money laundering, prevention and fight against corruption; control of tax evasion; and the prevention and fight against the financing of terrorism and/or proliferation of mass destruction weapons.”
The CVM concludes the document by stating that, “it will continue to deepen the study and analysis of the subject and its application to the capital market, being able, if necessary and appropriate, to regulate this new market, even in light of its ‘experience’ with the Normative Sandbox.”
By Audy Castaneda
