Since summer 2021, institutional investors have been able to allocate crypto asset investments via Spezialfonds (Sec. 284 German Capital Investment Code). Now, the first fund companies are preparing to launch crypto funds.
The BVI had successfully campaigned for Spezialfonds to be allowed to allocate up to 20 percent of their assets in crypto assets such as bitcoins. This enables institutional investors to take advantage of the opportunities offered by these markets. Retail funds, on the other hand, may only invest indirectly in crypto assets. As these assets are highly volatile, EU financial regulators have issued a consumer notice stating that direct investments in these assets are not suited for most retail consumers given the risk of capital loss.
For fund companies, the acquisition of crypto assets raises many practical questions, which are addressed in BVI’s Crypto Guide (currently only available in German language).
From an investor perspective, it still needs to be clarified how crypto assets can be integrated into the investment rules for regulated Spezialfonds investors, such as pension schemes and insurance companies, enabling these investors to benefit from the new investment opportunities too. For banks, however, crypto assets are subject to capital requirements.
To strengthen investors’ trust in the crypto market, appropriate regulation of market participants and intermediaries is required. An important step is the EU Regulation on Markets in Crypto-Assets (MiCAR). The rules impose a licensing obligation on providers of crypto asset services and offer a legal framework for all those crypto assets that are not securities-like and therefore do not qualify as financial instruments in the sense of the MiFID II.
MiCAR aims to improve market integrity through providing safeguards against market abuse and manipulation, as well as transparency rules. Above all, the operators of crypto trading platforms are supposed to be supervised more strictly. Furthermore, sustainability aspects are expected to be considered for investments in crypto markets and cryptocurrencies to be included in the EU taxonomy.
Crypto assets are subject to the same custody rules as other fund assets that are not financial instruments. Thus, the custodian oversees the crypto assets held by funds.
Crypto funds, i.e. investment funds that invest in crypto assets, need to be distinguished from so-called crypto fund shares. The latter are electronic fund shares being issued on the basis of blockchain technology. The first crypto fund shares of a German retail fund were issued in 2023 as part of a pilot project.