Last month, the French Financial Markets Regulator (AMF) delivered an ICO “VISA” to a company called WPO, which plans to issue a GreenToken between September and November of this year.
WPO is one of Europe’s leading independent asset management and service platforms, specialising in wind and solar energy. WPO claims to have the capacity to collect and analyse a huge set of data relating to wind and solar assets, thereby enabling it to improve the profitability of wind farms. WPO is going to exploit this data through the production of certificates called GoCerts that will be registered and transferred on a blockchain. The GreenTokens are going to be used to purchase the certificates. WPO hopes to offer other services as well and to create a GreenTokenNetwork with other professionals. Overall, the aim of WPO is to render renewable energy solutions more profitable and efficient through data analytics and ensuring the traceability of such data.
This VISA was created by a legislation enacted on May 22, 2019 that regulates, amongst others, ICOs and digital asset service providers. This piece of legislation is unique, as it stands between hard and soft law. ICO issuers have the option to apply for a VISA to the AMF. Once they opt into this possibility, they must ensure compliance with certain rules and may be sanctioned in case of non-compliance.
The AMF requires an information document that is similar to a prospectus, albeit less complex. WPO, for example, published an information document that is almost 120 pages long. The AMF also reviews all promotional information destined to potential investors to make sure that it is clear, sincere and not misleading. But the AMF will not look into the suitability or adequacy of the tokens offered to the public.
Once the VISA is obtained – if the file is complete it can be obtained within 20 days – it will be valid for six months. The issuer will be subject to, amongst others, AML duties, which might seem harsh, as an IPO issuer does not have to comply with such duties. The issuer must also ensure the safekeeping of the assets collected. One benefit of the VISA, is that the holder will have insured access to a bank account, which had previously been a practical obstacle because traditional banks generally refused to open bank accounts for the crypto industry. Another advantage to the VISA is the possibility to do direct solicitation and have digital asset service providers actively market the token sale. Without a VISA and a licence for the digital asset service provider, direct solicitation is forbidden and any infringement is criminally sanctioned.
In creating the VISA program, the French legislator tried to find a balance between the regulation of a highly mobile and borderless environment and the protection of potential investors. It is a balancing act between a seemingly voluntary setup for the issuer and mandatory protection for potential investors.
This voluntary VISA can only be delivered if no other banking or financial laws apply to the issuance. Indeed, the rules are subsidiary in nature and have been conceived for utility tokens. A security token would need to comply with regular financial laws. Finally, the law does not capture any token issuance to less than 150 investors. This provision is surprising as it does not seem to meet any specific purpose given that the VISA is voluntary. But the voluntary nature of the VISA is probably only the first step. It is likely only a matter of time before the VISA becomes mandatory.
The VISA to WPO is only the second of its kind. AMF issued its first VISA on December 17, 2019, to a fintech company called French-ICO.
Given the negative publicity surrounding ICOs with the scams that followed the ICO frenzy of 2017, it is not yet certain whether the original initiative of the French legislator will be a success. It is nevertheless an attempt to put some order into the ICO business and attract virtuous projects to France, while at the same time protecting French investors.
A detailed analysis of the French law with regards to ICOs and to the regulation of digital asset service providers can be found in this article by the author.