Obliged entities

The new rules will be applicable to the following entities:

1. Providers of crypto-asset services when they advertise crypto-assets
2. Providers of advertising services
3. Any natural or legal person not included in the previous two groups and that conduct activities related to crypto-assets, either on their own or through third-party delegation

Activities within scope

The Circular will be applicable to any advertising activity aimed at current or potential Spain-domiciled investors, if the goal of such advertising is to promote, implicitly or explicitly, crypto-assets as a form of investment.

The scope of the Circular excludes:

• The advertising of crypto-assets considered to be financial instruments.
• The advertising of crypto-assets that cannot be invested, due to their nature or characteristics.
• The advertising of crypto-assets whose only purpose is to grant digital access to a product or service that is only accepted by its issuer or by a limited group of commercial suppliers with which the issuer has a contractual relationship, provided it complies with certain requirements.
• The advertising of crypto-assets that are unique and not interchangeable with other crypto-assets.
• Explanatory documents on new issues ("white paper").
• Corporate advertising campaigns provided the website of the obliged entities comply with certain requirements.
• The documents or information provided by the crypto-asset offeror, its representative or a third party acting on its behalf in presentations aimed at institutional investors or analysts regarding a new issue of crypto-assets.
• The unsponsored publications issued by analysts or independent reviewers regarding crypto-assets.
• The advertising of technical seminars, courses and conferences on crypto-assets that those events do not promote investment in crypto-assets.

Main obligations

The main obligations imposed by the Circular are:

• The need to include disclaimers and references to risk factors in relation to the advertised product.
• The need to notify the CNMV 10 business days prior to any mass advertising campaign. Such campaigns can be initiated after 10 business days (i.e., there is no need to wait for formal approval), unless the CNMV notifies otherwise. The absence of a response from the CNMV during the period between the communication and the start of the campaign shall not imply that the CNMV considers the campaign to comply with all of the Circular's rules.
• The obligation to keep a register of the advertisements published in the past two years.

Supervision of advertising

Advertising that is aimed at investors in Spain will not require prior notification to the CNMV, except for mass advertising campaigns. Nonetheless, even where advertising is not considered to be mass advertising campaigns in the strict sense, the CNMV, in its capacity as regulator, may require obliged entities to notify other campaigns in advance when it considers that the advertising could have a significant impact on the target audience.

Additionally, the CNMV may require obliged entities to provide specific information on advertising campaigns or specific ads in order to assess compliance with the requirements set out in the Circular.

The CNMV may also require the suspension or correction of advertising campaigns that do not comply with the provisions of the Circular, notwithstanding the CNMV's authority to apply penalties where appropriate, according to the laws applicable to each institution.

Entering into force

The Circular will enter into force one month after its publication (i.e., from 17 February 2022).

This client alert was issued on 18 January 2022 by Baker McKenzie's Madrid office and shall not be deemed as legal advice. For further information on the content of this client alert, please contact Paula De Biase (partner, financial services regulation) through paula.debiase@bakermckenzie.com.