Federal Government: Judgment of the Berlin Chamber of Commerce on the freedom of permission of Bitcoin business is without relevance for supervision
The legal situation around Bitcoin is still inadequate in Germany. This shows a response from the Federal Government to an inquiry in which it explains that the financial supervision (Bafin), despite the judgment of the Berlin Chamber Court, has the mandate to regulate companies of the cryptocoin industry.
In September, the Berlin Chamber Court of Berlin made a sensational judgment: In a criminal proceedings against the operator of the Bitcoin exchange Bitcoin24.de, which was accused of doing a financial transactions without permission, the chamber court came to the conclusion that there was no criminal offense.
The reason is exciting: Since Bitcoin is neither the invoice unit nor an e-money, it could not be a financial instrument in the supervisory sense. According to the court, business such as Bitcoin platforms does not require a permit from the Federal Financial Service Supervisory Authority (BaFin). The Bafin itself exceeded its skills when it defined Bitcoin as an unit of invoice subject. Because it is not the task of a federal authority to incorporate the right to incorporate into laws.
The consequence of this judgment goes far: Bitcoin business in Germany would virtually make an area in which the financial supervision would have lost nothing. Any form of business, unless the opposite is displayed, would be allowed without further conditions; Regulation of the area would have no legal validity until further notice. That would be too good to be true and sounds relatively unusual for the location of Germany. In fact, it now seems that this consequence of the judgment does not exist.
A recent request to the Federal Government by FDP MP Frank Schäffler shows that the government supports BaFin in its claim to regulate bitcoins and other cryptocurrencies. Schäffler asked whether the government shares the assessment of the Chamber Court that Bitcoin is neither an invoice unit nor a financial instrument under the Banking Act (KWG) and whether it assumes that “no permission is required for the trade of cryptocurrencies for the operation of banking businesses?»
The government’s answer is relatively clear: The judgment of the Chamber Court does not affect BaFin’s administrative practice, but is limited to the question of criminal liability. For the practice of BaFin, this is without relevance. The government does not shared the assessment of the Chamber Court that the authority has spanned its competence with the declaration of bitcoins to the invoice unit.
Furthermore, the Federal Government would like to secure BaFin by laws in the area: “The Federal Government is currently examining whether the continuation of BaFin’s administrative practice should be flanked by legislative measures to allow business with cryptocurrencies and tokens through legislative measures.“The decision of BaFin to define Bitcoins as accounting units was supported by the Ministry of Finance, especially to take into account money laundering risks. These are addressed by the fourth EU money laundering directive, the implementation of which the government is currently preparing. In the course of this, the government also checks to what extent there is a need for adaptation of the previous legislation in order to adequately cover cryptocurrencies and tokens.
Frank Schäfler comments on the government’s answers by the fact that it is gratifying “that the Federal Government finally wants to conclude legislative gaps in the field of cryptocurrencies. Unfortunately, this comes back very late. Germany finally needs a clear strategy for the blockchain instead of subsequent patchwork.“In fact, the banter between the chamber court, BaFin and the Federal Government reveals above all how unclear the legal handling of Bitcoins at the Germany location is still.
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