Home / Publications / CMS Global Fintech Update

CMS Global Fintech update

The legal framework in the fintech industry is changing very quickly and sometimes varies greatly from jurisdiction to jurisdiction.

Our global update, will give you an overview of the latest changes and topics we have been dealing with in Europe, Africa and Latin America region. This will give you an at a glance summary of a number of articles that we have produced on a local basis.

For a more in-depth analysis or for any questions, please reach out to your usual CMS contact or listed below Fintech experts.


Fintech / Crowdfunding, Tokens, Payment Services, Stock Custody, etc.


Proposed law for the regulation of the Fintech industry

In February 2021, the Chilean Commission for the Financial Market (the “Commission”) published a proposal of a bill of law for the regulation of the Chilean Fintech industry, especially of crowdfunding platforms, in order to provide a normative framework that would encourage the development of this industry and the use of alternative financial solutions.


The impact of this project can be measured at different levels:

  • At first the implementation of this project would mean an impact for all kind of corporations as it implies the modification of the main corporate laws: the law 18,045 that regulates the stock markets, the law 18,046 that provides the main regulation for corporations and the law  20,712 that regulates the administration of third party funds; of the main changes that this laws suffer we can identify a modification in the number of stock holders that a closed held company can have before being forced to turn into an open held company (from 500 to 2,000), the elimination of the requisite of registration for issuers of values, being now enough just to register the values instead of the issuer; and lastly the Commission would now be entitled to require to financial entities under her supervision to implement APIs to ease the exchange of information of their clients between them.
  • A second level of impact is for the entities that perform under this industry. This project has been tailored under a modular approach, meaning this that the requisites that an entity would need to comply to act under law would depend on the kind of activities that it is performing, and not the type of business that want to develop.

The Commission by means of this project wants to implement a type of law that would allow a flexible approach for dynamic industry where traditional laws are more harmful than useful. To achieve this goal, the modular approach is an essential core of the project, as it is also the use of a lot of secondary regulations (the kind of regulation that can be issued and modified by the Commission) to support the main regulation contained in the law.




Amendment to the German Banking Act: New cryptocustody business

Since 1 January 2020, cryptocustodians require permission from the Federal Financial Supervisory Authority (“BaFin”). The legislator added cryptocustody business to the catalogue of financial services in the German Banking Act.


Cryptocustodians based in Germany, as well as cryptocustodians from abroad who address customers in Germany, require a cryptocustody business licence from BaFin. To apply, the following requirements are needed:

  • suitable and reliable management
  • minimum capital of EUR 125,000
  • business plan including balance sheets as well as profit and loss for the first three full financial years, organisational structures and internal control procedures
  • presentation of a proper business organisation including IT strategy and IT security.
Read related blog posts in German
Blog post 1 Blog post 2Blog post 3


Draft law (“TraFinG Gw”) for new money laundering rules for cryptotransactions above EUR 1,000

According to the draft for the Transparency Register and Financial Information Act, German money laundering regulations are to apply to crypto transactions exceeding a value of EUR 1,000.

For the purposes of the bill, “transfer of crypto” means any transfer of cryptoassets between natural or legal persons in the course of providing financial services or conducting banking business within the meaning of the German Banking Act.


The applicable obligations include:

  • identification of the contracting party and the person acting on its behalf
  • obtaining and evaluating information on the purpose and intended nature of the business relationship
  • continuous monitoring of the business relationship, including supervision of transactions for accuracy and origin of assets.

Electronic and cryptosecurities


Draft law for the introduction of electronic and cryptosecurities (“eWpG”)

The new law digitises securities and introduces cryptosecurities limited to bonds in the first instance. It places security tokens in a solid regulatory framework, for example by clarifying that they qualify as “goods” in terms of German civil laws. The regulation is technology-neutral and not limited to blockchains.


The regulation of cryptosecurities has been anticipated for quite some time and will allow bigger companies to finally issue tokenised securities. It will solve some legal uncertainties which have existed so far and will also reduce the legal risks for both issuer and investor. Since the act is the basis for future tokenised shares, it plays an important role in the digitalisation of the financial sector.

Read related publication (DE) Read related blog post (DE) 




The Bank of Italy’s innovation centre

On December 3rd, 2020, the Bank of Italy launched a new innovation centre aimed at supporting the digital evolution of the Italian financial market named “Milano Hub”.


The objective of the Milano Hub is to encourage the safe use of technology by the financial market in Italy and to strengthen the ability of intermediaries to react to such new opportunities also supporting the digital transformation of finance in the next future. Private operators will be allowed to propose their projects aimed at innovating the traditional market and their potential as well practical impact will be analysed by the Milano Hub and by independent expert groups, universities, and entities of the financial and non-financial industry.

The Italian Regulatory “Sandbox”

In the second quarter of 2021 is also expected that the Italian Ministry of Economy and Finance (“MEF”) will issue a Decree aimed at introducing a FinTech “experimentation” in Italy, also known as “regulatory sandbox” (the “Sandbox”).

The process has been so far delayed as some supervisory authorities have not provided their opinions on the draft Decree.


In the second quarter of 2021 is also expected that the Italian Ministry of Economy and Finance (“MEF”) will issue a Decree aimed at introducing a FinTech “experimentation” in Italy, also known as “regulatory sandbox” (the “Sandbox”).

The process has been so far delayed as some supervisory authorities have not provided their opinions on the draft Decree.

Read related publication

FinTech/Investment services


New Italian case-law trend

With the judgment no. 9413 published on 9 April 2021, the Italian Supreme Court stated that the so-called “light” electronic signature (i.e., a signature other than a digital signature or an advanced electronic signature), consisting in a “point and click” in the private area of a client, affixed to a banking or investment contract, can satisfy the written form required under pain of nullity by the relevant legislation.


The principle expressed in this decision remove an important obstacle to the digitalisation of investment and financial services as it is no longer necessary to collect wet ink signatures of contracts (many Italian retail customers are still unable to use electronic signatures) 

Blockchain and Distributed Ledgers


The Italian Strategy for Blockchain and Distributed Ledgers

In the second quarter it is expected that the Italian Ministry of Economic Development will issue the results of consultations on the document named “Italian Strategy for technologies based on distributed ledgers and Blockchain”, published in June 2020.

The public consultation on the national strategy ended on July 20th, 2020 but the debate results to be still open. The aim of such initiative is to explore possible applications of Blockchain and Distributed Ledgers both in the Fintech sector and in support of industry and services, and to offer a valid contribution to the ongoing European debate, which recently resulted in the adoption of a so called “digital finance package”, introducing a digital finance strategy, legislative proposals on crypto-assets and digital resilience, and a renewed retail payments strategy.


Dematerialised securities


Native tokens: a reality now in Luxembourg

The Luxembourg legislative framework has been evolving constantly over the past years in order to take into account a changing market.

One of the first steps consisted in enabling in 2013 (by way of a law of 6 April 2013 on dematerialised securities (“the 2013 Law”)) the issuance of securities in a demateralised form. To that effect, an issuer needs to rely either on a settlement organisation or a central account keeper for the holding of an issuance account, i.e. an account which registers the type, number and characteristics of the securities issued. These securities may then circulate by way of book-entry in a securities account (compte-titre). The issuance is nevertheless directly carried out in a dematerialised form.

In 2019, the Distributed Ledger Technology (DLT) first found its way into the Luxembourg securities legislation (i.e. the Luxembourg law on the circulation of securities dated 1 August 2001). The legislator has therefore recognised the possibility of using secured electronic registration mechanisms such as Blockchain for holding and registering book-entry securities in securities accounts, Luxembourg has become one of the first countries in Europe to offer to investors a safe and technologically advanced financial system.

In early 2021, the Luxembourg legislator is going a step further by:  

  • modernising the 2013 Law by inserting a definition of “issuance account” which expressly refers to the secured electronic registration mechanisms technology and environment
  • tweaking the Luxembourg law of 5 April 1993 on the financial sector, as amended in opening the role of central account holder with respect to unlisted debt securities to European Economic Area investment firms and credit institutions.

The law of 22 January 2021 (“the 2021 Law”) impacts the financial market:

  • at the level of the issuer
  • at the level of the service providers.

With the 2021 Law, securities may be issued directly in a tokenised form. Furthermore, the 2021 Law opens the market to certain service providers. 

Watch webinar recordingRead related LN article





Dutch Central Bank responds to the United Bitcoin Companies Netherlands

The Dutch Central Bank (DNB) has responded to a letter from the United Bitcoin Companies Netherlands (VBNL), in which it addresses questions concerning its supervision of cryptoservice providers, argued to be too stringent. 


Key observations surrounding the letter and the issue of Dutch cryptoservice supervision include:

  • DNB indicates that whitelisting and verification are not requirements set by DNB, but examples of how compliance with the applicable sanctions legislation can be applied by cryptoservice providers
  • DNB disagrees with the VBNL’s view that new requirements have been introduced; according to DNB, these requirements were already in place before the registration regime came into force
  • cryptoservice providers are required to take “adequate control” of their records, but DNB emphasises that “adequate control” is an open standard, and consequences may differ from sector to sector
  • according to DNB, “adequate control” means that during the client onboarding process, all relationships should be assessed and any information regarding these relationships (e.g. name, address and date of birth) should be obtained. In order to be able to reference transactions against sanctions lists, the identity and the location of the counterparty and beneficiary must be clear

DNB confirms that the obligation for cryptoservice providers to comply with sanctions legislation does not follow directly from the EU’s 5th Anti-Money Laundering Directive (AMLD5): the Dutch legislator introduced this requirement.

Read related publication


Financial Services, Banking, Payment Services, etc.


Discussion on the digital euro

The Bank of Slovenia organised a panel discussion to exchange viewpoints and positions regarding the challenges and opportunities that the digital euro would offer to Slovenia citizens.


The discussion was primarily organised to inform the broader Slovenian public on recent EU developments regarding the digital euro and benefits that it may bring. While the panel discussion has no direct impact on the sector, it may be viewed as an introduction to related events that will follow in the upcoming months.

Financial Services, Payment Services


Adoption of Rules on a Register of providers of exchange services between virtual and fiat currencies and custodian wallet providers

Rules on a Register of providers of exchange services between virtual and fiat currencies and custodian wallet providers were adopted, based on the Slovenian Prevention of Money Laundering and Terrorist Financing Act.

The Rules lay down in more detail the regulations for setting up and maintaining the Register, which will be managed by the Slovenian AML Office.

Establishment of a Register has been necessary to ensure control in the field of the prevention of money laundering and terrorist financing over the providers of said services.

The Rules were published in the Official Gazette of the Republic of Slovenia on 22 March 2021 and entered into force the following day.


With the adoption of the Rules and the establishment of the Register, Slovenia made a small but important step towards regulation of cryptocurrencies.


Payment Services – FinTech


FinTech access to the Spanish National Electronic Clearing System (SNCE) is enabled. 

On 16 December 2020 the new regulation on the SNCE entered into force; the main highlight that introduces is access, through a direct participant, to the SNCE by electronic money (e-money) and payment institutions.


The SNCE is the Spanish retail payment system managed by Iberpay (Sociedad Española de Sistemas de Pago), a private company whose shareholders are the credit institutions participating in the SNCE. The Bank of Spain is responsible for approving the rules of the system and for its oversight.

The SNCE is the general framework of action through which the exchange, clearing and settlement of transactions are carried out according to the operating and functional scheme described in the SNCE Regulation.

There are two types of participants in the SNCE:

  • direct participants who are, in turn, Iberpay shareholders
  • indirect participants who appear on the system represented by a direct participant.

Currently, only credit institutions are able to participate in the SNCE as direct participants.

However, the considerable growth of payment services and instruments led by payment and e-money institutions has made the payments sector one of the most innovative and attractive due to its technological innovation.

These circumstances, and the rising demand for opening payment systems to non-bank entities, have made it advisable to review the Regulation to ensure that the SNCE does not overlook this trend.

Therefore, payment and e-money institutions will have greater access to the SNCE, albeit without needing to fulfil the same criteria as direct participants.

This increased access will allow direct participants in the SNCE –credit institutions – to designate payment institutions and e-money institutions as Accessible Entities in the system – indirect participants – in order to facilitate the identification of those transactions related to payment services provided by such institutions, as well as to allow them technically to submit and receive transactions directly on behalf of the direct participant that has designated them as an Accessible Entity before the system.

By authorising this opening to new players in the payment services industry, the SNCE is line with the main tendencies and innovations that are taking place in the European context.

Cryptoassets – FinTech


Considerations of the National Securities Market Commission (“CNMV”) and the Bank of Spain regarding the risks involved by cryptocurrencies as an investment and the need for a regulatory framework

On 9 February 2021, the CNMV and the Bank of Spain published a joint release (the "Release") in which they emphasise the risk of cryptoassets as an investment due to their extreme volatility, complexity and lack of transparency. This Release is aligned with a previous release published by both authorities on 2018. The Release highlights the lack of regulation and the need to create a European regulatory framework to provide similar protection and guarantees as those offered by financial products. 


The authorities recognise that the use of cryptoassets is a reality growing in leaps and bounds. However, it is important to consider some key aspects, including the risks they may trigger.

The MiCA Regulation, whose approval is still pending, is intended to set forth at European level a regulatory framework for the issuing of cryptoassets and its provision.

The Release points out that cryptoassets are not considered a means of payment and are not supported by a central bank or public authorities. These are complex instruments which may not be suitable for small investors, and whose price involves a high speculative component that may even entail total loss of the investment.

In addition, the price of these assets is formed in the absence of effective mechanisms to prevent their manipulation, and in many cases, prices are also formed without public information to support them.

On the other hand, the acceptance of cryptocurrencies as a means of payment is still very limited and the authorities note that there is no obligation to accept Bitcoin or any other cryptoassets as a means of payment of debts or other obligations.

One of the most relevant aspects about the use of cryptoassets is related to the players involved in the issue, marketing and custody of the assets, insofar as the providers of those services are usually established in third countries or, in some cases, in a location that is impossible to determine. This stunts the resolution of any dispute.

Finally, the Release warns about the risk of loss or theft of private keys, which threatens the loss of cryptocurrencies without the possibility of recovery, as custody is neither regulated nor supervised.

As an additional measure for the protection of investors, on 12 March the Spanish Government approved Royal Decree-Law 5/2021 on extraordinary measures to support business solvency in response to the COVID-19 pandemic. This strengthens the legal framework for the protection of investors with regard to the advertising of new financial instruments and assets in the digital area, focusing on cryptoassets.

The new regulation allows the CNMV to oversee the advertising of cryptoassets. The CNMV will develop, among other measures, the subjective and objective scopes and the specific control modalities to which advertising activities will be subject.

All in all, the high use of cryptocurrencies by investors is of concern to supervisory authorities because of all the potential risks. Hence, urgent adoption of the MiCA Regulation is necessary and will represent a step forward in the security and protection of investors, although there is a long way to go.

South Africa



Proposed licensing requirements for cryptoassets advisors and intermediaries

The South African Financial Sector Conduct Authority (FSCA) published on 20 November 2020 a draft declaration (“the draft Declaration”) that would result in a person who provides advisory or intermediary services in relation to cryptoassets being required to be licensed under the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002) (FAIS Act). Cryptoassets are to be brought under the scope of the FAIS Act by including them in the definition of “financial products”, so that the provisions of the FAIS Act apply to them on the same basis as they apply to the financial products that are listed in the FAIS Act itself.


The effect of declaring cryptoassets as a financial product under the FAIS Act is that: 

  • any person furnishing advice or rendering intermediary services in relation to cryptoassets must be authorised under the FAIS Act as a financial services provider
  • any person so authorised, including its representatives, must comply with the relevant FAIS requirements, e.g. the requirements of the General Code of Conduct for Authorised Financial Services Providers and Representatives, 2003, and the Determination of Fit and Proper Requirements, 2017.

The intention behind the draft Declaration is to capture intermediaries that advise on or sell cryptoassets to consumers so as to provide adequate protection for consumers advised to purchase these products. Licensing of intermediaries is also necessary to improve the quality of data for policymakers and regulators about the cryptoasset environment, and to consider whether there is a need for further regulatory interventions.

Read related publication


Cryptocurrencies / Tokenisation of Assets


New Swiss blockchain laws boost Switzerland as securities token hub

Switzerland has enacted new laws on blockchain/DLT, involving amendments to ten existing Swiss legal statutes. The main innovations of the new laws are:

  • the possibility of an electronic registration of rights (in particular on the blockchain) with the features of negotiable securities (so-called “uncertificated register securities”)
  • a new licence category for “DLT trading facilities” (i.e. crypto/token exchanges).

The first batch of the new laws entered into effect on 1 February 2021; the second and final batch will presumably enter into effect in autumn 2021.


The new Swiss blockchain laws will, in particular, facilitate raising capital on the primary market through security token offerings, as the new uncertificated register securities allow for the tokenisation of assets in a legally secure manner. Furthermore, the new laws will enable issuers to have traded their tokens on licensed exchanges on the secondary market. Combined with the new prospectus regime recently introduced by way of the Swiss Financial Services Act, including clear-cut exceptions to the prospectus duty, Switzerland could thus well become a “securities token hub”, as it was an ICO hub a few years ago.

Read related Law-Now article

United Kingdom

UK Fintech


UK Budget 2021: A bright future for the UK FinTech ecosystem?

Description: On 3 March 2021, Chancellor Rishi Sunak announced the latest UK budget, hot on the heels of the groundbreaking Kalifa Review into the UK’s flourishing FinTech industry (below). The aspects of the budget most relevant to FinTech include:

  • new fast-track tech visas to encourage skilled immigration to support growing FinTech scale-ups
  • expansion of the ‘Help to Grow’ scheme targeted at SMEs to boost technological knowledge
  • contactless spending limit increase to £100
  • Recovery Loan Scheme to replace existing COVID-19 government lending programmes
  • Corporation Tax rise to 25% in 2023, but with protections for smaller businesses
  • expansion of the Furlough Scheme and Self Employed Income Support Scheme to retain talent until September 2021.

2021 looks set to be an exciting year for FinTech as the industry continues to go from strength to strength, with relevant measures introduced by the budget enabling further development. Although the ongoing pandemic has caused immeasurable harm to the global economy and our daily lives, it has encouraged the uptake of technology – particularly in the Financial Services sector. The UK seems to be encouraging this by implementing programmes directly targeting FinTech and the wider technology industry, but it remains to be seen whether this will counteract some of the difficulties caused by Brexit and the pandemic in attracting global talent and encouraging consumer confidence.

Read related Law-Now article

Publication of the Kalifa Review and UK FinTech strategy

An independent review of the UK’s FinTech sector has been carried out by Ron Kalifa OBE to establish priority areas for industry, policy makers and regulators. The Kalifa Review of UK Fintech (“the Review”) identifies three broad threats to the UK’s position as a leader in the FinTech sector:

  • competition from overseas
  • Brexit and resulting regulatory uncertainty
  • the COVID-19 pandemic and the acceleration of digital adoption.

The Review also identifies three broad opportunities for the UK’s FinTech sector:

  • increased tech-based jobs
  • trade and access to international markets
  • inclusion and recovery with access to better, cheaper financial services.

The Review’s focus is UK-wide, and international, and it helps to resolve a wide range of difficult issues facing the FinTech sector.


The Review makes recommendations in its Five-Point Plan:

  1. Policy and Regulation
  2. Skills and Talent
  3. Investment
  4. International Attractiveness and Competitiveness
  5. National Connectivity.

The Review also proposes the creation of a Centre for Finance, Innovation and Technology (“CFIT”) as an organisational link to accelerate growth. The report invites the public and private sectors to return to the report one year from publication to consider the progress made. As above, some of these recommendations have been implemented by measures in the UK budget announced on 3 March 2021.

Read related Law-Now article

Buy-now-pay-later (BNPL) products


The Woolard Review: Buy-now-pay-later firms to be regulated by the FCA

On 2 February 2021, the Woolard Review (“the Review”) was published which makes recommendations on change and innovation in the unsecured credit market. The recommendations apply to:

  • consumer groups
  • regulated and unregulated providers of credit
  • trade bodies
  • retail businesses
  • employers.

The Review sets out 26 recommendations to the Financial Conduct Authority (FCA, “the Regulator”), the UK Government and other bodies to ensure a better unsecured credit market in the UK.


Review include:

  • BNPL products should be brought under FCA regulation
  • ensuring access to good debt advice services to underpin a healthy credit market
  • ensuring there is a sustained regulatory response to coronavirus, including through a more prescriptive approach to forbearance
  • encouraging alternatives to high cost credit
  • building a better credit information market
  • regulation focused on outcomes.

The Regulator stated that it has considered and accepted the recommendations which are directed at the Regulator and will build them into its business planning. Further details of the FCA’s response will be given when its next Business Plan is published in April 2021. The FCA, as recommended, intends to report on its progress in one year’s time.

Read related Law-Now article

Payment Services and E-Money


An Updated Approach: the FCA’s new Consultation Paper CP21/3 on Payment Services and E-Money

The FCA published Consultation Paper CP21/3 (“the Consultation Paper”) on 28 January 2021 proposing:

  • amendments to the technical standards on strong customer authentication and common and secure methods of communication
  • updates to its published guidance in its Approach Document on Payment Services and Electronic Money
  • additional guidance to be added to its Perimeter Guidance Manual.

The deadline for comments on the consultation (except for comments relating to contactless payments) is 30 April 2021. After this period has elapsed, the FCA will consider the feedback and publish finalised technical standards and guidance.

Read related Law-Now article



HODL On: New HM Treasury consultation on cryptoassets and stablecoins

On 7 January 2021, HM Treasury (HMT) published its consultation paper on the UK regulatory approach to cryptoassets and stablecoins (“the Consultation Paper”).  This Consultation Paper has been eagerly awaited by the UK cryptoasset industry. The Consultation Paper proposes to:

  • create a regulatory regime for “stablecoins”
  • request evidence for the future regulation of other types of cryptoassets.

HMT has set out three key objectives and principles for its proposed cryptoasset regulation:

  • maintaining the current division of UK regulator responsibilities as far as possible and applying the principle of ‘same risk, same regulatory outcome’
  • ensuring the approach is proportionate, focused on where risks and opportunities are most urgent or acute
  • ensuring the approach is agile, able to reflect international discussions and aligned to the future government approach to financial services and payments regulation.

In relation to stablecoins, the Consultation Paper identifies three key risks to:

  • financial stability and market integrity
  • consumers
  • competition.

This regime will cover the following types of tokens:

  • stablecoins linked to a single fiat currency
  • stablecoins not linked to a single fiat currency (e.g. gold or multi-currencies).

A broad range of firms and functions and activities will be covered. These firms will need to comply with a number of high-level requirements specified in the Consultation Paper.

The Consultation will close on 21 March 2021. HMT has not specified the date by which it expects to provide details on its new proposed policies.  However, in its recent report on global stablecoins, the Financial Stability Board has asked national regulators to deliver a regulatory regime in relation to stablecoins by July 2022.

Read related Law-Now article

Speculative ‘mini-bonds’


FCA confirms final rules for ban on marketing of speculative illiquid securities such as ‘mini-bonds’ to retail investors

The FCA published its final rules on the marketing of speculative mini-bonds to retail investors, which will apply from 1 January 2021. This follows the FCA’s introduction of temporary rules banning the marketing of these instruments to retail investors on 1 January 2020.

In summary, the final rules:

  • allow the marketing of speculative illiquid securities to retail investors only when they are classified as:
    • certified sophisticated investors, or
    • certified high-net-worth investors and self-certified sophisticated investors, where the product has been pre-assessed as likely to be suitable for a particular investor
  • require any marketing material produced or approved by an authorised firm to include a specific risk warning, and disclosures of any costs or payments to third parties that are deducted from the money raised from investors.

As with the previous temporary rules, the FCA considers that the restrictions will affect:

  • issuers of speculative illiquid securities
  • authorised firms that approve or communicate financial promotions relating to speculative illiquid securities
  • firms offering services in relation to these products – for example, investment advice, arranging deals in investments, and law firms and other professional service providers to issuers or firms.

The final rules apply from 1 January 2021 onwards. Firms should take note of the amendments and clarifications made by the FCA in these final rules and consider whether any changes to their business are necessary in order to comply.

Read related Law-Now article


Key contact

Sam Robinson
Sam Robinson

CMS Expert Guide to Fintech in Latin America

Our new CMS Expert Guide (in cooperation with Focaccia Amaral e Lamonica Advogados) provides you with an overview of five key fintech markets in Latin America: Brazil, Chile, Colombia, Mexico and Peru.