Blockchain technology has the potential to fundamentally revolutionize the financial industry. Providers like Immediate Bitcoin app and customers should know the fields of application, but also the legal stumbling blocks, in order to be there at an early stage.
Blockchain Technology Explained
New technologies come with opportunities and risks, but also with legal uncertainties. Blockchain technology requires special attention because it turns many traditional processes upside down. So far, the new technology has been almost completely tested and evaluated within the framework of existing laws. Appropriate legal regulations are still lacking in some cases. This applies in particular to the strictly regulated financial industry, which is characterized by numerous laws and regulations. There is a risk of conflicts, in particular with supervisory law, but also with contract law, consumer protection, or data protection, for example. Providers should obtain legal advice at an early stage in order to act with legal certainty and avoid expensive liability cases.
The relevant legal framework is not static, but dynamically evolving. Various legislative projects are currently being discussed or implemented. The European rules for the prevention of money laundering, which will soon be implemented in national law, are of great importance. They mean that crypto assets are also among the financial instruments and the crypto custody business is classified as a new financial service. At the same time, the crypto custody business must not be operated by providers who also provide other banking or financial services. If you want to offer several services, you have to rely on subsidiaries. The legislator wants to increase the level of IT protection and prevent the core business from being affected in the event of damage. Caution is also called for on the part of investors. Before investing in cryptocurrencies, you should check very carefully to who you are making the money available to. Last but not least, this also applies to companies that want to raise capital as part of a security token offering. Providers who regulate all legal issues in a foresighted and systematic manner can also convince critical customers.
In the sights of BaFin
The Federal Financial Supervisory Authority (BaFin) is responsible for blockchain technology. The use of the new technology does not require a permit per se. However, the regulatory assessment depends on the use case and the services offered. Potential providers should definitely seek legal advice in advance in order to have the regulatory requirements of their activities checked and evaluated. A premature start of new business activities can lead to significant problems. If a business that requires a license is operated without a permit, BaFin can impose severe fines or order the immediate transaction. On top of that, the operators face criminal consequences up to and including imprisonment.
BaFin is still making decisions largely on the basis of the existing laws. This will change with the legal innovations and advancing case law. More and more activities will tend to require a permit. In this respect, a forward-looking legal examination is essential in order to set a reliable framework for further business development.
Pitfalls in contract law
There are also some ambiguities in civil law with blockchain-based databases. The German Civil Code stipulates that if a contract is effectively contested, the legal transaction is void from the outset. However, a reversal in the blockchain is usually only possible with the cooperation of the other contracting party. A comparable problem arises with withdrawal or revocation. The rescission of the contract requires a second transaction, which can also only come about with the help of the other contracting party. For this, however, the contractual partner must play along and may not stand in the way. A possible solution: Legal acts are initially carried out via an additional IT system and are executed in the blockchain after the revocation period has expired.
Difficulties can also arise at the enforcement level. There is a need for regulation with regard to foreclosure. It has not yet been legally clarified whether the assets stored in the blockchain are enforceable at all. If so, a possible garnishment is also problematic. Cryptocurrencies are stored in the wallet under a password known only to the debtor. A bailiff cannot access the wallet without their help.
Data protection at a glance
Some principles of the blockchain collide with the applicable General Data Protection Regulation (GDPR), which also applies to the new technology. Even if the users in the network often only appear with a pseudonym, they can still be identified in principle. Finally, they store personal data such as delivery address or bank details with participating companies such as trading platforms. For example, the GDPR provides that every person has the right to change or delete personal data if it is inaccurate. This poses a major challenge in the blockchain since all data is actually unchangeable. In addition, the blockchain does not stop at national borders. Personal data goes outside the scope of the GDPR and may be subject to very different regulations. In addition, the GDPR provides for a specific person responsible for the processing of data. Such a person or body does not usually exist in decentralized data management.
An extension and adaptation of the data protection regulations are necessary for blockchain technology. Until the legislator has found suitable solutions, preventive individual contract designs are advisable. In this way, legal pitfalls can be avoided.
The advantages of blockchain-based databases are so important that widespread use is only a matter of time. The new technology changes traditional processes and opens up completely new business models. All financial players should deal with all developments at an early stage and examine the effects on their business. Blockchain technology must not be slowed down by legal uncertainty. The laws and regulations must be quickly adapted and expanded to take digital developments into account. This is the only way to achieve broad acceptance and a win-win situation for providers and investors.