New AML/KYC Regulations Coming to Dutch Crypto Exchanges and Wallets

Colin Muller

A new regime of European Union (EU) banking regulations that extend to cryptoasset exchanges and wallets has been proposed as draft regulation in the Netherlands, and may become Dutch law in Q1 of 2019. What will eventually be EU-wide regulations are the fifth iteration/update to the bloc’s “Directive,” aimed at detecting and preventing money laundering and terrorist financing through Eurozone financial entities.

According to the legal blog Regulation Tomorrow, the updated policies of the directive pursue more transparency and availability of ownership registers to EU authorities; less possibility of anonymous transactions EU-wide; more scrutiny of transactions to/from certain specified countries with weak anti-money laundering (AML) or antiterrorism standards, or otherwise opaque ownership registering practices; a centralized banking register for all eurozone banks; “enhancing the powers of EU Financial Intelligence Units” and more cooperation between EU financial authorities.

Crypto In AML Directive’s Sights

The changes are notable intheir own right regarding the tension between privacy and security in the EU. The final critical change brought by the directive update however, is the new applicability of all of the above to all cryptoasset custodial services, be they exchanges or wallets. Any “digital representation” that can be “transferred, stored and traded electronically” will now fall under the directive.

This may mean that EU-based cryptoasset services exchanges to increasingly impose AML and know-your-customer (KYC) identity requirements on all customers, if they have not already, in the lead up to the January 2020 deadline for the Directive’s implementation. CryptoGlobe only yesterday reported on one such instance, presumably anticipating the directive's requirements.

A recent and extensive report on the use of cryptoassets for criminal activities, compiled for the European Parliament (EP), estimates that virtual assets are “misused” for over seven billion euros worth of transactions - although this figure looks paltry next to a 2015 FBI assessment, which said that $300 billion worth is laundered every year just in the US.

The EP report stated that “AMLD5's definition of virtual currencies is sufficient to combat money laundering, terrorist financing and tax evasion via cryptocurrencies.”

U.S. SEC Needs More Time to Consider VanEck Bitcoin ETF Proposal, Invites Comments

The U.S. Securities and Exchange Commission (SEC) announced on Monday (May 20) that it needed more time to consider the VanEck–SolidX Bitcoin ETF proposal. This delay also gives interested parties more time to comment on the proposal and address the SEC's main concerns. 

On 30 January 2019, Cboe BZX Exchange ("BZX") filed with the SEC a proposed rule change to list/trade shares of "SolidX Bitcoin Shares", which would be issued by the VanEck SolidX Bitcoin Trust. This proposed rule change was published in the Federal Register on 20 February 2019. It then had 45 days to approve, disapprove, or ask for a delay.

(Note, however, that BZX had filed its original proposal back in June 2018; the SEC delayed a decision on this proposal several times, and February 27 was the final deadline for the SEC to make a decision. However, due to the U.S. government shutdown that occurred in December 2018 and ended in January 2019, the SEC was partially out of action during this period. By the time that the SEC fully operational again, there was only a few weeks left till the final deadline. So, to give this Bitcoin ETF proposal the best chance of success, on 22 January 2019, BZX withdrew its original proposal, and re-applied (in order to reset the clock) on 30 January 2019.)

Anyway, on 29 March 2019, the SEC released a notice to say that it had selected 21 May 2019 as the date by which it should approve, disapprove, or ask for a further delay to consider the grounds for disapproving the Bitcoin ETF proposal. Why 21 May 2019? Because 90 days is the maximum amount of time it could ask for, and 21 May 2019 is 90 days from 20 February 2019, which was the date that the proposal got published in the Federal Register.  

Well, yesterday (i.e. just one day before the expiry of the 90-day deadline), the SEC decided to delay making a decision, and this time it had to provide "notice of the grounds for disapproval under consideration" (i.e. explain why it thinks that it might deny the proposal).

Here are a few of the SEC's concerns, and it is inviting the ETF's sponsor, i.e. BZX, and other interested parties to provide written comments (in either electronic or paper form):

  • Has BZX "entered into a surveillance-sharing agreement with a regulated market of significant size related to bitcoin?"
  • What is the relationship between the Bitcoin futures market and the Bitcoin spot market?
  • The proposed Bitcoin ETF uses "a non-public, proprietary index to value holdings based on OTC activity", but is this really "an appropriate means to calculate the NAV of an exchange-traded product"?
  • BZX has said in its proposal that it "has entered into a comprehensive surveillance sharing agreement with the Gemini Exchange and is working to establish similar agreements with other bitcoin venues." But is the Gemini digital asset exchange "a regulated market of significant size"?

Any arguments regarding whether the proposal should be approved or disapproved need to be submitted within 21 days of publication in the Federal Register of yesterday's order (Release No. 34-85896; File No. SR-CboeBZX-2019-004), and anyone who wants to "file a rebuttal to any other person’s submission" must do so no later than within 35 days of the date of publication in the Federal Register.

The following tweets were sent out on May 19, i.e. the day before the SEC made this latest announcement, by Crypto Twitter's favorite U.S. attorney, Jake Chervinsky:

According to Chervinsky, "VanEck's new deadline is August 19," and the "SEC can & likely will delay one more time for a final deadline of October 18."

This is how Gabor Gurbacs, Director of Digital Assets Strategy at VanEck/MVIS, expressed his personal thoughts on the SEC's ultra cautious attitude towards Bitcoin ETFs:

The SEC choosing to delay making a decision on the VanEck Bitcoin ETF proposal did not come as a surprise to the crypto markets, which reacted very calmly (Bitcoin's price only went down slightly), and in fact, at press time (11:00 UTC on May 21), according to data from CryptoCompare, Bitcoin is trading at $7,945, up 0.33% in the past 24-hour period:

BTC - 24 Hour CC Chart - 21 May 2019.png