Does it make a difference for me, the buyer, if an NFT qualifies as a security?
Select jurisdiction
Germany
With respect to the purchase contract the qualification as a security makes no practical
difference, as in general no specific requirements apply. The same is true for the fulfillment of
the contract as well, since the transfer of all kinds of tokens takes place on the blockchain
regardless of their legal qualification.
On the other hand, if you purchase the NFTs under circumstances similar to a public offer,
there might be some relevant differences. Unlike security offerings public offers of NFTs are
basically not subject to prospect and notification obligations. Therefore the issuer of NFTs is
not obliged to inform the purchaser to the same extent as the issuer of securities, which
might lead to a lower information level on the purchaser´s side.
Brazil
Yes. If a NFT is considered a security, the person responsible for the offer must observe
and comply with the regulations for placing these assets on the market, currently regulated by
CVM. In this sense, if the regulatory issue is not observed, the NFT will be irregular under the
Brazilian legislation, causing its offer to be irregular.
Poland
Whether an NFT qualifies as a security or not under Polish law could have implications for the purchaser in terms of the rights and protections they are entitled to.
If an NFT is classified as a security, it would be subject to regulation by the Polish Financial Supervision Authority (PFSA) and the Polish Ministry of Finance. This means that the issuer of the NFT would be required to comply with certain disclosure and registration requirements, and the NFT would be subject to ongoing oversight by the regulatory authorities. As a purchaser, you would have rights and protections as a security holder, such as the right to receive financial and other information about the issuer, the right to vote on certain matters, and the right to take legal action in case of fraud or mismanagement.
On the other hand, if an NFT does not qualify as a security, it would not be subject to the same level
of regulation, and the rights and protections of the purchaser would be more limited.
