newtech.law - legal aspects of new technologies

Due to provisions implementing the simple
stock company into Polish law, and provisions on “dematerialisation of
private joint-stock companies”, the Commercial Companies Code contains
cryptic wording on the option of maintaining a shareholder register for these
two types of companies, “in electronic form, as a dispersed and
decentralised database”.

We have addressed the question of this option repeatedly because it is potentially an opening for “tokenisation” of shares. This means that in a simple stock company or joint-stock company, shares can be issued as blockchain tokens. Simple rewording of two identical provisions in the Commercial Companies Code could therefore connect the world of decentralised registers and shareholdings, the latter being a concept recognised in law, in both of these types of joint-stock companies.

On 1 March 2020, the regulations on the simple stock company (PSA) will come into force. They will make it possible to keep a register of shareholders of such companies using blockchain technology. For some, this is a minor technical regulation, while for others it is a truly revolutionary breakthrough in the legal system, enabling tokenisation of shares in Polish companies. How will it really be?

In the summer of 2018, we had the opportunity to participate in the analysis of the draft PSA regulations by the Coalition for Polish Innovation. The provision on the possibility of maintaining a PSA’s register of shareholders using a dispersed and decentralised database was unexpectedly included in the draft and immediately met with considerable interest. It was a complete novelty in the Polish legal system. The surprise was all the greater as, at the same time, we observed the first activities of regulators aimed at limiting uncontrolled development of blockchain technology.

The provision allowing a register of PSA shareholders to be maintained on blockchain is not as revolutionary as it seems. We are a long way from full tokenisation and decentralisation of PSAs. This is determined by other PSA provisions showing much more attachment to traditional legal institutions. Nevertheless, this provision opens up a lot of new possibilities and creates space for interesting legal experimentation with blockchain technology. It is worth taking advantage of this opportunity to create solutions that in the future will encourage regulators and lawmakers to open up the legal system more courageously to the technology of decentralised registers.

Some time ago, Burger King announced that it was offering a mobile application allowing users to “burn” competing fast-food ads. By directing the device’s camera to a billboard, flyer or coupon showing the “right” competing logo, a smartphone user activates an augmented reality image of flames burning the competitor’s logo on the phone screen. In exchange for burning the competitor’s logo, the app generates a code entitling the user to receive a free sandwich at the Burger King chain. The launch of the app was supported by a promotional campaign, and a promotional video showing the operation of the app can be viewed online.

The question posed in the title may seem surprising. Only four years ago another AML directive was published, marking the next stage of development of EU rules on money laundering and financing of terrorism (known as the 4^th AML Directive or AMLD4). Its predecessor, AMLD3, was adopted 10 years before that. And just over a year ago significant changes in EU law were adopted, known as AMLD5, and the member states still have time to implement the latest changes into their national legal systems, with a deadline in January 2020.

The Court of Justice of the European Union has once again spoken about the limits of the right to be forgotten. This time, it answered requests for a preliminary ruling in the case of Google v CNIL (Commission Nationale de l'Informatique et des Libertés, the French public authority responsible for regulating personal data processing). The case concerned a fine of EUR 100,000 which the CNIL imposed on Google after it refused to remove, in the exercise of a data subject’s right to be forgotten, links from all language versions of its search engine.

At the end of September 2019, Rahim Blak published the response issued to him by the Office of the Polish Financial Supervision Authority (UKNF) to questions concerning the possible application of financial regulations to his planned and realised activity involving raising capital through distribution on the market of personal tokens. Although the response was issued in a specific case submitted to the Innovation Hub, given the lack of a public general position of KNF on the legal status of tokens, the document is also relevant to the broader market.