• Mehr als 3 Millionen Wörter Inhalt
  • |
  • info@itmedialaw.com
  • |
  • Tel: 03322 5078053
Rechtsanwalt Marian Härtel - ITMediaLaw

No products in the cart.

  • en English
  • de Deutsch
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Kurzberatung
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Rechtsanwalt Marian Härtel - ITMediaLaw

NFT and prospectus requirement

7. November 2022
in Blockchain and web law
Reading Time: 3 mins read
0 0
A A
0
nft g2a667756c 1920
Key Facts
  • The legal situation regarding NFTs and their prospectus requirement is complex and varies depending on the structure.
  • NFTs are unique digital tokens that are mostly based on blockchain technology.
  • Whether NFTs are considered securities depends on the EU Prospectus Regulation and MiFID II.
  • BaFin defines criteria for assessing whether an NFT is a financial instrument.
  • Many NFTs are utility tokens that only provide access to services, but not to monetary payments.
  • Classification as an investment is often dependent on the individual case, particularly where value is expected.
  • Legal advice is recommended, as the regulations surrounding blockchain law are constantly changing.

The issue of whether and when the sale or trading of NFTs is subject to the prospectus requirement is brand new and difficult to answer in detail. Details are very important here. For this reason, this blog cannot provide detailed information, because it depends on the specific design of NFT or token.

NFTs are mostly blockchain-based digital tokens, each of which is unique. I will be posting an article soon that addresses the current state of legal issues regarding NFT. Hint: Nobody knows yet exactly how NFT should be classified. Unlike cryptocurrencies, there is basically only one piece of NFT at a time. Even though there can be many same NFT or those that embody the similar rights.

I do not want to go into the individual blockchain-relevant technical details today. This will be the content of some further articles. The content of this first block post shall be whether “normal” NFTs trigger the obligation to prepare a prospectus in Germany.

This could be the case if NFT is exempted from the EU Prospectus Regulation would be recorded. The prerequisite for this is that NFTs according to Art. 2 lit. a) EU Prospectus Regulation by “transferable securities” within the meaning of Art. 4 para. 1 No. 44 of the Second Markets in Financial Instruments Directive (“MiFID II“). If an NFT were to be classified as a security, the consequence would be, at least in principle and subject to the occurrence of an exceptional circumstance, that in the case of a public offering a securities prospectus would have to be published in order to inform potential investors about the points relevant for a purchase decision and in particular the risks of such an action.

In the information letter of the Bundesanhalt für Finanzdienstleistungsaufsicht based on the policy statement of 18.01.2018, information letter of WA 51 and IF1 on prospectus and permission obligations, BaFin states criteria to assess whether it is a financial instrument according to § 2 para. 4 WpHG or a security pursuant to § 2 No. 1 WpPG.

According to the aforementioned letters of advice, the decisive factor is that the potential investment instrument is

(1) is transferable.

(2) by its nature is tradable on financial markets, the theoretical possibility of trading on cryptocurrency trading platforms being sufficient

and this

(3) securities, i.e. membership rights and/or rights under the law of obligations.

Many NFTs, for example in the field of computer games, can actually be regarded as utility tokens. These are limited to use as vouchers for prepaid goods and services of the issuer. They do not involve a right directed toward the payment of money; rather, they are directed toward the provision of certain services or privileges.

In most cases, however, the prospectus requirement is likely to fail because standard NFTs do not grant any further rights, in particular no participation in company profits, other distributions and payments, but only grant access to the virtual goods just “promised”.

In most cases, however, it is still necessary to check whether the issued tokens are also not assets within the meaning of Section 1 (1) of the German Stock Corporation Act (AktG). 2 German Investment Schemes Act (“VermAnlG”). The Asset Investment Act is subsidiary to the WpPG and the EU Prospectus Regulation.

Thus, NFT could be considered as an asset investment within the meaning of sec. 1 para. 2 No. 7 German Investment Act (Vermögensanlagegesetz). This includes “other investments that provide or promise to provide interest and repayment or an asset-based cash settlement in exchange for the temporary transfer of money.” As already shown above, this is often a question of design depending on the individual case. As a rule, however, the mere acquisition of an NFT with the expectation of selling it to a third party for a higher price is not a reason for opening the scope of application of the VermAnlG. However, my advice is to always contact a specialized colleague here.

Also possible would be a conflict of NFT with market abuse provision or the Banking Act. However, I would also like to separate this question out in other articles, which you can then find via the search here on the blog.

Overall, it is important to emphasize that a lot has happened in “blockchain law” issues in the last two years. However, as BaFin is also becoming more active, I can only advise against offering blockchain instruments in your own startup without consulting a lawyer.

Marian Härtel
Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.

Tags: AGBBlockchainBlogComputerComputer gameCryptocurrencydigitalFireGamesInformationInterestInvestorLegal issuesLegal questionPurchase decisionRegulationSecuritiesserviceToken

Weitere spannende Blogposts

Keyselling punishable and anti-competitive?

Small summary – Blizzard vs. Bossland
23. February 2023

On the subject of keyselling, there are two recent rulings that are causing unrest in the industry. The most unrest,...

Read moreDetails

Extended Black Week..Is that even allowed?

Extended Black Week..Is that even allowed?
8. January 2024

I just received an email from my old gym that made me wonder. It was about the extension of their...

Read moreDetails

EU adopts copyright reform

7. November 2022

The more than controversial copyright reform were finally implemented today and a majority of the states of the EU have...

Read moreDetails

ECJ tightens requirements for GDPR disclosures

Data protection: “Targeted advertising” through “legitimate interest” at the end? EDPB vs. meta
19. January 2023

The European Court of Justice (ECJ) has ruled that data controllers must, in principle, disclose the identity of the recipients...

Read moreDetails

Doxing: A legal look and the potential for conflict with blockchain

Doxing: A legal look and the potential for conflict with blockchain
26. July 2023

Introduction The ongoing digitization of our world has not only revolutionized our everyday lives and working environments, but also the...

Read moreDetails

Attention: Vouchers to existing customers can be advertising!

Attention: Vouchers to existing customers can be advertising!
12. December 2018

In the case of a gaming chair, the District Court of Frankfurt (Az.: 2-03 O 372/17) has decided that sending...

Read moreDetails

Esports facilities and alcohol?

Esports facilities and alcohol?
17. July 2019

Even if esports men are more likely to be the energy drink consumers, locations such as esports bars or LAN...

Read moreDetails

BGH to decide on Yelp reviews in January

No more free tissues at the pharmacy?
20. November 2019

Facts The applicant claims that Yelp is injunctive relief, determination and damages for its assessment representations. As many will know,...

Read moreDetails

Stumbling blocks you should be aware of when reading a contract

Stumbling blocks you should be aware of when reading a contract
4. January 2023

Why is it important to read and understand contracts? Contracts are an essential part of everyday life. They help us...

Read moreDetails
Contractual regulations for no-code/low-code software development
Other

Contractual regulations for no-code/low-code software development

21. May 2025

No-code and low-code platforms enable rapid software development without extensive manual programming. Applications are increasingly being developed on the basis...

Read moreDetails
Erotic content on OnlyFans: Copyright and personality rights protection for creators

Erotic content on OnlyFans: Copyright and personality rights protection for creators

20. May 2025
Goodbye hustle culture? Startup life between 24/7 grind and work-life balance

Goodbye hustle culture? Startup life between 24/7 grind and work-life balance

19. May 2025
Startup buzzwords 2025: Bullshit bingo in marketing German Introduction: Bullshit bingo in marketing German

Startup buzzwords 2025: Bullshit bingo in marketing German Introduction: Bullshit bingo in marketing German

18. May 2025
From the metaverse boom to AI euphoria – a tech lawyer in the hype cycle

From the metaverse boom to AI euphoria – a tech lawyer in the hype cycle

17. May 2025

Podcastfolge

legal challenges when implementing confidential computing data protection and encryption in the cloud

Smart contracts and blockchain

15. January 2025

In this captivating podcast episode, I take a deep dive into the world of blockchain technology and smart contracts. The...

Read moreDetails
9e9bbb286e0d24cb5ca04eccc9b0c902

Legal challenges of innovative business models

1. October 2024
247f58c28882e230e982fa3a32d34dea

Digital sovereignty: Europe’s path to a self-determined digital future

8. December 2024
238a909c26a0302cbd4792cbd18e4922

Global challenges for start-ups – A legal guide

10. October 2024
da884f9e2769f2f96d6b74255be62c27

The role of the IT lawyer

5. September 2024

Video

My transparent billing

My transparent billing

10. February 2025

In this video, I talk a bit about transparent billing and how I communicate what it costs to work with...

Read moreDetails
Fascination between law and technology

Fascination between law and technology

10. February 2025
My two biggest challenges are?

My two biggest challenges are?

10. February 2025
What really makes me happy

What really makes me happy

10. February 2025
What I love about my job!

What I love about my job!

10. February 2025
  • Privacy policy
  • Imprint
  • Contact
  • About lawyer Marian Härtel
Marian Härtel, Rathenaustr. 58a, 14612 Falkensee, info@itmedialaw.com

Marian Härtel - Rechtsanwalt für IT-Recht, Medienrecht und Startups, mit einem Fokus auf innovative Geschäftsmodelle, Games, KI und Finanzierungsberatung.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
  • en English
  • de Deutsch
Kostenlose Kurzberatung