On October 11, 2022, CVM announced Guidance Opinion no. 40/22, named “Cryptocoins and Securities Market”, consolidating the understanding and guidance to rate cryptocoins as securities and providing the Agency performance limits and stock market cryptocoin standardization and inspection powers.
According to CVM Chairman, João Pedro Nascimento: “The opinion is a recommendation and guidance to the market, with the goal of enabling greater predictability and safety to everyone, and enabling investor and welfare safety, as well as fostering a positive environment to crypto economy, integrity and in compliance with relevant constitutional and legal principles.”.
The Opinion defines cryptocoins as being “assets represented digitally, protected by encryption, which object can be transactions executed and stored through Distributed Ledger Technologies (DLTs).. Usually, cryptocoins (or their ownership) are represented by token, which are intangible digital bonds”.
Thus, according to CVM, market agents must evaluate each cryptocoin characteristics, in order to assess whether they are securities, which happens whenever:(i) they are the digital representation of any securities provided expressly in subitems I to VIII of art. 2 of Law 14.430 (i.e., receivables certificates in general); or (ii) it is included in security wide concept of subitem IV of art. 2 of Law 6.385, as collective investment agreement.
What is more, even though the Opinion goal is simply market recommendation and guidance, in order to enable greater predictability and safety to everyone, the relevance of CVM approaching the topic must be highlighted.
At present, cryptocoin regulation is at a slow pace in Brazil. Bill no. 4.401/2021, enacted in May, 2022 by Federal Senate, that rules on cryptocoin transfer and management and provides guidelines to such operations, still waits to be enacted by Deputy Chamber. Therefore ,any official agency positioning and recommendation becomes relevant to the market.
Written by Clara Couto, Associate at Drummond Advisors
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