Germany: Digital Collectible NFTs Not Securities

NFTs are also not classified as investments, but that too could change

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Germany’s finance watchdog says it hasn’t found any NFTs that can be classified as a security, but that doesn’t mean they won’t crop up.

BaFin says it studied different kinds of NFTs: digital collectibles, across gaming and the metaverse (including virtual real estate). It considers NFTs to be securities if they:

  • bare hallmarks of regular securities (membership rights or contractual claims, like stocks or debt),
  • are transferable,
  • and can be traded on the financial market.

“So far, BaFin is not aware of any NFTs that are to be classified as securities in the regulatory sense,” BaFin said (automatically translated.

“On the one hand, the tokens have so far lacked embodied rights similar to securities. And on the other hand, NFTs are usually provided with individual rights and content, so that standardization and thus tradability in the sense of the regulatory concept of securities is ruled out.”

The distinction ultimately boils down to the rights an NFT issuer associates with the digital asset and how it will be used after the token is purchased, the report said. 

“With the currently observed use of NFT, in particular for the tokenization of digital works of art, the qualification as a financial instrument in the form of an investment or a debt security is not necessarily necessary,” BaFin said.

Rather than Bored Apes or CryptoPunks being securities, Bafin would more so consider this an example of an NFT security: 1,000 NFTs that all embody the same repayment and interest claims.

Bafin noted that mere speculation that a token can generate profit is not sufficient reasoning to classify an NFT as an investment.


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