Trade with Bitcoins in Germany may still be free of permits

In its comments, the Bundesverband Bitcoin concludes that trading Bitcoins in Germany may not require a licence from the BaFin. The requirement of such a licence has so far been regarded as the biggest hurdle for e.g. the operation of a Bitcoin “ATM”.

Are Bitcoins units of the news spy account?

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In contrast to BaFin’s information on financial instruments, Bitcoins may not be units of the news spy account equivalent to foreign exchange. This is the conclusion reached by Lutz Auffenberg, lawyer and specialist lawyer for banking and capital market law, in the leading administrative law journal NVwZ, following his experience with the news spy and Bitcoins on a day-to-day basis. Auffenberg takes a critical look at current administrative practice.

What are units of the Bitcoin secret?

A characteristic feature of the Bitcoin secret is that it is used to define the value of a receivable, but the receivable itself cannot be settled in it. For example, a claim may be based on special drawing rights of the International Monetary Fund. However, according to onlinebetrug a payment will be made in euro or another national currency in order to settle these claims.

The situation is quite different in the day-to-day application of Bitcoins: receivables are usually valued in national currency, but settled by direct payment of Bitcoins. It can therefore be said that national currencies temporarily serve as units of account for payment transactions on the basis of Bitcoins. If, however, Bitcoins are dependent on a unit of account in order to be used in payment transactions, it is impossible for them to represent units of account themselves.

What does the legislator say?
In his article “Bitcoins as units of account”, lawyer Lutz Auffenberg of the Winheller law firm in Frankfurt am Main emphatically questions the classification of Bitcoins as units of account. The German legislator did not define the concept of units of account itself. At the same time, however, various units of account are mentioned by law – such as the IMF’s special drawing rights, the ECU as a precursor to the euro and the historical gold franc.

The examples mentioned now have “in common that their value can be converted into national currency at any time”. Bitcoins, on the other hand, “have no generally accepted current value”. Rather, the market value of Bitcoins when settling claims between the contracting parties is determined individually or on the basis of the time value on one or more marketplaces (Bitcoin exchanges). “The decentralised Bitcoin system does not provide for a (…) reference value.

When introducing the units of account into the German Banking Act, legislators could not have thought of virtual currencies such as Bitcoins, as these were not in circulation before 2009. On the other hand, he was probably concerned with “making foreign exchange trading accessible to supervision by the regulatory authorities”. In this context, trading in units of account, namely ECU, should also be supervised. But then “only those items can be subsumed under the term unit of account (…) which are comparable with foreign exchange”.

Currencies, on the other hand, are foreign means of payment with the exception of cash. In other words, foreign exchange is always backed by an issuing central bank. This is not the case with Bitcoins – another important counterargument. Units of account in the sense of the legislator serve no other purpose than the determination of the value of a claim or “the creation of a common denominator” “for the calculation of sums of money”. They must be “comparable with foreign exchange” in the sense of the legislator. As they are not, below the line, Bitcoins may not be classified as financial instruments within the meaning of Section 1 XI 2 No. 7 of the German Banking Act (KWG) in accordance with applicable law in the opinion of Lutz Auffenberg.