Crypto regulation in Gibraltar
Gibraltar is an example of a jurisdiction that has introduced rules aimed at attracting blockchain and crypto companies. Gibraltar’s approach was named “progressive”, and as a result the country became the preferred jurisdiction for many cryptocurrency companies.
DLT Regulatory Framework
Gibraltar developed special legislation known as the DLT Regulation System (Distributed Ledger Technology) which came into force on 1 January 2018 and applies to DLT firms, that is, which is, is not subject to any regulations or other legal framework, which uses distributed register (DLT) technology to transfer or store valuables belonging to other persons. Activities that require DLT licenses include crypto exchanges, crypto-currency purse and asset storage service providers, crypto-currency purse providers, and DLT-based trading platforms that facilitate the purchase and sale of goods and services. Firms and activities subject to other regulatory frameworks will continue to be regulated within this framework. Distributors, including cryptocurrency exchanges and depositories, must be authorized and licensed by the Gibraltar Financial Services Commission (GFSC) as DLT suppliers.
Gibraltar cryptocurrency regulation
The Gibraltar Regulator’s approach to the DLT requires DLT suppliers to follow nine principles developed to ensure that the desired regulatory outcomes are achieved, including investor protection. The Gibraltar Regulatory Authority must meet the following nine basic requirements:
- The HFC must ensure that the applicant and persons associated with the applicant are able to carry out the relevant activities of the DLT. The main elements identified by HFCs are: (i)integrity; (ii) skills, competence, diligence and experience; and (iii)financial status;
- Pay due attention to the interests and needs of your clients and communicate with them honestly, clearly and not by mutual consent. The DLT provider should, inter alia, make every effort to reduce the risks associated with the use of DLT and apply best practices in its operations;
- Maintaining sufficient financial and non-financial resources – DLT must ensure that it has sufficient financial resources and capital levels that are controlled and sufficient to support commercial purposes;
- Effectively manage, control and conduct business with due diligence, including proper risk management for their businesses and customers, which includes adopting appropriate forward-looking risk management practices;
- Have effective mechanisms to protect clients’ assets and money when they are responsible for them – DLT suppliers should take the necessary precautions to protect clients’ assets, and stored assets should be separated from the seller’s own assets;
- There are effective corporate governance mechanisms – DLT suppliers must apply strict corporate governance procedures that include (a) board structure, including composition, to ensure a proper balance and combination of skills and experience to complement the business; (b) adequate application of the four eyes principle (separation of different functions, cross check, double signature, dual control of assets, etc.) and (c) Application of Gibraltar’s common sense and instructions;
- Ensure that all secure access systems and protocols meet high standards;
- Financial Crime Prevention – DLT providers should have systems in place to prevent, detect and disclose the risks of financial crimes such as money laundering and combating the financing of terrorism (AML/CFT). DLT providers should adopt and implement appropriate preventive measures against money laundering and terrorist financing commensurate with their risks, and DLT suppliers should also report suspicious transactions where applicable; and
- Be sustainable and develop contingency plans for orderly and solvent liquidation of their business.
These requirements and conditions will also apply to the licensing of cryptocurrency exchanges that trade only in virtual assets. The advantage is that there are no restrictions on the provision of services only to professional investors.
Gibraltar ranks third in terms of cryptocurrency hedge fund managers (after the US and the UK, and Hong Kong fourth). Gibraltar is also the fourth most popular home for crypto hedge funds. A positive development was the establishment of the Gibraltar New Technologies Association (GANT), which included Gibraltar’s leading law firms, accountants and technology companies. GANT has the task not only to accelerate the development of blockchain and DLT, but also to increase the prestige of «new technologies».
Crypto regulation in Gibgaltar overview
|Period for consideration
|Annual fee for supervision
|State fee for application
|from 11,800 EUR
|Local staff member
|At least 2
|Required share capital
|Corporate income tax
In 2018, Gibraltar’s Proceeds of Crime Act 2015 was amended to extend the obligations under POC/FT to businesses that earn income from any form of sale of tokenized digital assets, whether on its own behalf or on behalf of another person. Licensed DLT suppliers are also required to comply with the Proceeds of Crime Act and relevant instructions issued by the Gibraltar Financial Services Commission.
The EU Fifth Anti-Money Laundering Directive (5AMLD) applies to Gibraltar and has been transposed to Gibraltar’s laws under the provisions of the Proceeds of Crime Act 2015 (Amendment) 2020. 5AMLD has included service providers who exchange between virtual currencies and fiat currencies, as well as custodial purse providers in AML / CTF Regulation. In 2017, however, Gibraltar had already regulated that activity. Under the laws of Gibraltar, anyone who uses DLT to store or transfer property belonging to another person is already subject to the Fourth Anti-Money Laundering Directive. Gibraltar did not include the 5AMLD provisions for cryptocurrency service providers and cryptocurrency wallet providers, as these service providers already have obligations under the GPO and FT as DLT providers.
DLT rules do not specifically regulate ICOs, although they may be subject to existing securities rules. Gibraltar issued proposals to regulate the ICO in March 2018. The proposed rules would cover the promotion and sale of cryptographic tokens, secondary market platforms and token-related investment services and would regulate some cryptography-related activities, carried out in or outside Gibraltar. The proposed regime would cover virtual assets beyond DLT and Gibraltar’s financial services and securities legislation.
It is important to note that GFSC stated that they do not want and do not see for themselves as a regulator the ability to prescribe what looks «good» when selling tokens. The GFSC would rather allow the market of authorized sponsors to offer different options on how well the ICO looks.
There are no individual management plans in Hong Kong. Instead, regulators have adopted a pragmatic approach whereby the SFC determines the status of ICO regulation on a case-by-case basis, depending on whether it has the features of traditional protection. If tokens are considered «securities», any party dealing with or advising on tokens must have a license or registration with the SFC. This, of course, is clearly inconsistent with the regulatory position in mainland China, but it is far from as progressive and proactive as the efforts in Gibraltar, where Hong Kong is the centre of regulatory approaches.
Activities to be regulated under the proposals (if carried out in or from Gibraltar) include:
- Promotion, sale and distribution of tokens;
- Secondary market trading platforms; and
- Provision of symbolic investments and related services.
The offers will also introduce a requirement for the «authorized sponsor» of all publicly offered ICOs and will regulate the behavior and impose obligations on authorized sponsors, secondary market token operators.
However, offers will not regulate issuer or promoter markers, or the underlying technology. Instead, regulation will be carried out by requiring authorized sponsors, crypto exchanges, and service providers to comply with the new rules.
The objective of the proposed governance regime would be to reduce the risks associated with those activities. In the case of symbolic crowdfunding, this will require full and accurate disclosure, while the secondary platform market will be subject to rules that ensure orderly and appropriate behavior. Competency requirements will apply to investment service providers. The HCFC would be the appropriate regulator for the POD/FT, and the provisions of the DLT rules would apply to firms subject to the new marker rules.
Promotion, sale and distribution of tokens
The first part of the proposed rules would govern promotion in the primary market, Sale and distribution of tokens that are not securities (which are already subject to existing securities legislation, as in the case of Hong Kong)direct gifts or donations using the rules. covers activities
- which imply or imply that they are made of Gibraltar;
- designed to attract the attention or access of any person in Gibraltar;
- carried out by foreign affiliates of organizations registered in Gibraltar (in such cases the person of Gibraltar would be liable); or
- carried out by foreign agents and trustees acting on behalf of organizations registered in Gibraltar or on behalf of natural persons habitually resident in Gibraltar (in such cases the person responsible is the person of Gibraltar).
Under the proposals, these tokens are generally referred to as services or access tokens, which offer commercial products or services (which may not exist at the time the tokens are sold). Tokens that function solely as a decentralized virtual currency (such as Bitcoin) or as a digital currency, issued by the central bank (CBDC) will be excluded from this part of the rules. However, hybrid tokens (which have a basic economic function that is both virtual currency and something else) will be caught.
Unless further details are included in the proposed legislation or guide, the current proposals provide little clarity as to which tokens will be subject to the new legislation and existing securities laws, which will remain unregulated. Thus, the regulation of ICO proposals will still require an analysis of the nature of the rights attached to the markers and their intended use. From a European perspective, the closest equivalent of the US concept of security is probably a unit in a collective investment scheme. At present, there is no indication as to how this concept is applied to ICO. It is not clear from Gibraltar’s proposals whether they will cover all «service tokens» regardless of whether they can be sold on the secondary market.
The proposed rules for the promotion, sale and distribution of tokens will require adequate, accurate and balanced disclosure, so that anyone considering buying tokens in the primary market can make an informed decision. The Rules may prescribe that, at a minimum, disclosure is appropriate and in what form (for example, in a key factual document of no more than 2 pages). Gibraltar’s IDPs may from time to time publish instructions on disclosure rules.
Financial crimes regulation
Businesses that receive any form of token income into their own account or from another person have been included in the Proceeds of Crime Act 2015 (POCA) Amendment, which came into force in March 2018. Thus, issuers are already legally required to perform AML and CTF checks on token buyers.
The proposed rules will establish a regime for the authorization and supervision of symbolic sponsors (authorized sponsors) who will be responsible for ensuring compliance with this part of the rules. An authorized sponsor should be appointed for each public offering of tokens advertised, sold or distributed in Gibraltar or from Gibraltar. Authorized sponsors may be appointed as propagandists of Gibraltar or propagandists of the proposal, wherever they may be.
Authorized sponsors should possess the knowledge and experience of ICO, as well as intelligence and administrative information on Gibraltar. They would be allowed to delegate some of their work to other parties, including offshore shipments, but would remain directly responsible to GFCs for the actions of their delegates.
Under the proposed regime, authorized authors would have to have one or more sets of rules for the proposals they support. Authorized sponsors are considered best suited to identify best practices with respect to the proposals they support, and are free to apply different codes to different categories of tokens and offers. Codes of practice may cover issues such as the application and distribution of proceeds of sale.
The Code of Practice should be included in authorized sponsors’ agreements with their ICO clients. The submission of codes of practice will be part of the application process for a sponsorship licence. A preliminary report on changes to codes of practice is required and will be treated in the same way as other important business developments.
It is suggested that these rules define the principles governing the content of the rules. Authorized sponsors will have the right, subject to approval, to establish their own methodologies for the implementation of the principles.
Authorized sponsors’ registers, codes of practice, sponsors’ clients and tokens
GFSC will establish and maintain a public registry of authorized sponsors and their codes of conduct (past and present).
The GFSC will add to the public registry the following information on public offers made by authorized sponsors of public proposals in which they participate:
- the client(s) for which they work;
- tokens included in the offer;
- The code of practice applicable to the proposal; and
- Any interest that they and their partners have in the tokens offered.
New controlled activity and offense
A new supervised activity by an authorized sponsor is proposed, and advertising, The sale or distribution of tokens in or from Gibraltar without complying with the following requirements shall be considered an offense:
- Requirement for an authorized sponsor;
- Requirement for a current record in the public registry;
- Certain disclosure obligations; and
- Relevant POCA provisions, where applicable.
The promotion, sale and distribution of the public offering of tokens can be done only once while the offer is in the registry.
Secondary market activity
Proposals include the regulation of secondary market platforms operating in or outside Gibraltar that are used for token trading and, to the extent not covered by other regulations, their derivatives. The rules seek to ensure that these markets operate in a fair, transparent and efficient manner and that organized trade takes place only on regulated platforms.
The proposed rules will set out requirements for:
- Public disclosure of trade activities;
- GFSC transaction disclosure; and
- Specific supervision of tokens and token derivatives positions.
These rules will cover the secondary market for trading all tokenized digital assets, including virtual currencies, and will, as far as possible, model the market platform in accordance with MiFID 2 and the Financial Instruments Markets and Amendment Regulations (MiFIR).
Authorized secondary token markets
Proposals include the addition of new controlled activities to operate the secondary market platform used for trading tokens and their derivatives. The GFSC will allow and control the operators of the secondary token market, as well as maintain a public registry of such operators.
Token investments and support services
The proposed legislation would include new supervised activities for the provision of investments and additional services related to tokens in or from Gibraltar and, to the extent not provided for in other regulations, their derivatives.
This part of the rules is intended to provide advice on investment in tokens, virtual currencies and digital currencies issued by the central bank, including:
- General recommendations (fair and neutral presentation of the facts regarding investments and services in token);
- Product recommendations (selective and subjective representation of the advantages and disadvantages of specific investments and services in tokens);
- and personal advice (taking into account the specific needs and circumstances of the particular investor).
Our highly qualified and reliable lawyers will be happy to provide you with individual support in registering with the Virtual Currency Registry and in obtaining a crypto license in Gibraltar. We closely follow local regulations and are therefore well-prepared to effectively guide our customers at every stage of the registration process.
ESTABLISH A CRYPTO COMPANY IN GIBRALTAR
If you are looking for maturing crypto jurisdictions that can offer a robust regulatory framework, look at Gibraltar, the British Overseas Territory, which was among the first countries to recognize and regulate cryptocurrencies. The Government continues to improve national legislation so that the industry can benefit from regulatory clarity and continue to gain the confidence of investors and customers.
Gibraltar’s companies are governed by the Companies Act 2014, which was aligned with EU directives when the country was part of the EU and is regularly amended to reflect the latest international standards. The registration of Gibraltar companies is regulated by the Companies Act 1984.
Gibraltar’s jurisdiction has many advantages, including:
- Income from outside Gibraltar is not taxed, nor is it taxed on capital gains, dividends, sales, gifts or wealth, nor is VAT part of the country’s tax system
- It is known for its stability and openness to innovation
- Well-developed business infrastructure with world-class public services
- Nominee directors have the right
- Simplified Company Establishment Process
- Competitive operating costs
- Highly skilled and productive workforce
Cryptocurrency regulation at national level from 2018
All cryptocurrency transactions are regulated by EU law
Flexible and beneficial taxation system
Credit opportunities for crypto start-ups
TYPES OF BUSINESS ENTITIES
To run a fully licensed cryptographic business in Gibraltar, you must create either a Private Limited Liability Company (LTD) or a Public Limited Company (PLC). There are no residential requirements for founders, shareholders and directors, although the licensing authority expects senior management to reside in Gibraltar.
The main difference between public and private companies is that shares of public companies are issued through initial public offering (IPO) and are traded on public exchanges, while shares of private companies are not offered for public placement.
The Companies Act 2014 contains the following definitions and rules regarding the level of personal responsibility of owners of companies:
A company is a limited liability company if the liability of its members is limited by its charter and this limitation may be limited by shares or a guarantee
- If the liability of the members of a company is limited to the amount, if any, of the shares owned by them, the company is limited to the shares
- The company is limited to a guarantee when each member undertakes to pay the amount specified in the constituent documents in case of insolvency or termination of activities
- A limited warranty company may also have equity
Documents required for company registration in Gibraltar:
- Articles of association
- Memorandum of association
- Detailed business plan including business model, objectives, marketing plan, financial forecasts, sales strategies, etc.
- Confirmation of identity of founders, shareholders and directors
- Confirmation of the address of each member of the company (bank statement or utility bill received in the last three months)
- Power of attorney if the company is created remotely
The memorandum of association of any company should include the following:
- Appropriate company name
- Statement that the company will have a registered office in Gibraltar
- Claim that the liability of its members is limited
- Whether the company is public or private
- If the company is limited by the warranty, the document should specify the details and terms of each member’s contributions, such as their obligation to contribute to the company’s assets if it is to be withdrawn
- If the company has a share capital, the document must contain information on the amount of the share capital with which the company must be registered, and on the division of the share capital into shares of a fixed amount, as well as the names of each shareholder and the corresponding share numbers
The memorandum of association must be signed by each shareholder in the presence of at least one witness, who must attest to his signature.
Private Limited Liability Company (LLC)
The Private Limited Liability Company (LLC) is one of the most common legal entities in Gibraltar. It may be established within a week by one or more legal or natural persons without restrictions on residence or citizenship.
Requirements for a private limited liability company (LLC) intending to engage in cryptography-related activities:
- At least one shareholder of any nationality (no residence requirement)
- At least one director who must have an impeccable reputation and actively participate in the company’s business activities (without residency requirements)
- Minimum share capital (paid-in) – 100 GBP (approx. 117 EUR), but ultimately it is determined by the complexity of the crypto business model
- At least two staff members in Gibraltar, one of whom should be a principal staff member in addition to the Director
- Local secretary
- Business site
- Work platform
- Registered office in Gibraltar
Such a company must submit annual financial statements and when its annual sales exceed 500,000 GBP (ca. 586,000 EUR), it must appoint a local auditor registered with the Gibraltar Financial Services Commission (GFSC).
Open Limited Liability Company (PLC)
A joint-stock company (JSC) may be established and is entirely owned by foreigners. If all documents are in order, a new company can be established within two weeks.
Requirements for a Public Limited Liability Company (PLC) intending to engage in cryptography-related activities:
- At least two directors (without restrictions on nationality or residence)
- At least seven shareholders (without citizenship restrictions)
- The minimum share capital (paid-in) is 20,500 GBP (approx. 24,000 EUR), but ultimately determined by the complexity of the crypto business model
- Company secretary
- Business site
- Work platform
- Registered office in Gibraltar
When your crypto company is fully operational, you should remember to keep consistent records of all your business operations for at least six years, which include the following:
- Cryptocurrency Transactions
- Agreements concerning the purchase of shares of a company
- Purchased equipment, machinery and assets, including purchase receipts (you can claim capital benefit)
- Sales bill
- Bank statements
- Debts owed or owed by the company
- Details of employee benefits
The company must appoint a local auditor who will perform the statutory audit and submit audited annual financial statements.
Whatever company you choose, please note that all documents that are not English must be accompanied by a notarized translation into English. If you are looking for a certified translator or notary, please contact us and we will be happy to help you.
What you need to do
To establish a fully licensed cryptographic company in Gibraltar, the following steps should be taken:
- Reserve a unique company name at Companies House Gibraltar, which will issue a company name registration certificate
- Find an office in Gibraltar where your local staff will be based and where all legal and government correspondence will be delivered
- Open a corporate bank account with the Gibraltar Bank
- Transfer of equity capital to a new bank account
- Pay a registration fee of 100 GBP (approx. 117 EUR)
- Additional payment of 10 GBP (approx. 12 EUR) on the share capital
- Submit all necessary documents together with the application for registration of the company at Companies House Gibraltar
- Registration with the Tax Office (companies and employees)
- Registration with the Employment Service
- When a company is registered, apply for a crypto license
Your cryptographic company must obtain a full license from the Gibraltar authorities before it can begin operations. The cryptographic license or license of the DLT provider, the main purpose of which is to comply with AML/CFT rules, is issued by the GFSC, which is also responsible for the general supervision of cryptographic market participants.
The process of obtaining a cryptographic license in Gibraltar is well structured, transparent and efficient, but may be costly depending on the nature of the licensed activity, as fees may range from €11,800 to €35,000. It takes about three months to process an application, provided that it is properly completed.
The application process consists of the following steps:
- Preliminary participation
- Initial evaluation of the application
- Full statement and presentation
A complete list of company-related state fees payable to the Companies House Gibraltar can be found here.
Taxation of crypto companies in Gibraltar
There is no cryptocurrency tax in Gibraltar. All cryptographic companies are required to adhere to common taxation principles and in most cases pay general taxes, which are collected and administered by the Internal Revenue Service. The tax year lasts from July 1 to June 30.
Gibraltar cryptographic companies are usually responsible for the following general taxes:
Corporate Tax (STI) – 12.5
Social Insurance (SI) – 20
Stamp Duty (SD) – 0-3% for real estate or 10 GBP (approx. 12 EUR) per share
The tax regime ultimately depends on the nature of the company’s economic activity and its residence status. A company is considered a tax resident in Gibraltar if it is managed and controlled (through corporate decisions) from Gibraltar or from outside Gibraltar by permanent residents of Gibraltar.
The corporate tax is governed by the Income Tax Act 2010 and is levied on profits derived from income earned in Gibraltar. This means that if your revenue-producing economic activities are conducted outside Gibraltar, your crypto company is not liable for corporate tax.
If your cryptographic company has a licence in Gibraltar or a licence in another country but has been transferred in Gibraltar, its income is automatically considered to be a source in Gibraltar and is therefore subject to corporate taxation.
As a tax resident, you can be eligible for numerous tax breaks and tax breaks, which can become a significant accelerator during the first year of operation.
The capital grants in Gibraltar are as follows:
- A premium of up to GBP 60,000 (approximately EUR 69,600) for the first year of operation of machinery and equipment upon purchase or, at a higher cost, 50 per cent of the cost for the period is fully deducted
- Purchase of computer equipment up to GBP 100,000 (approximately EUR 116,000) or, in the case of higher costs, 50 per cent of the cost for that period is fully deducted
- Reserve of 25 per cent per annum on a balance-sheet basis
Under the Social Security (Insurance) Act (Contribution Amendment) Order 2021, if your company is registered in Gibraltar, It is generally responsible for the payment of weekly social security contributions regardless of the location of the employees, provided that they are registered with the Employment Service. Contributions start from 28 GBP (approx. 33 EUR) per week and may not exceed 50 GBP (approx. 58 EUR) per week.
A startup with 20 employees and a small business with up to 10 employees can apply for 100 GBP (ca. 116 EUR) credit for an employee during the first year due to social insurance. In addition, start-ups are supported by the Employment Promotion Programme, which provides an additional deduction of 50 per cent of the fixed wages of new employees hired after 1 July 2021.
The cost of training workers in occupations related to the work may be deducted from the profit of the enterprise at 150 per cent.
Gibraltar has only one international agreement on the elimination of double taxation, which has been signed with the United Kingdom. Crypto companies can still take advantage of the tax exemption that is available to those who have to pay corporate tax under the 2010 Income Tax Act, but can prove to the Inland Revenue Board, that they have paid or are obliged to pay income tax in another jurisdiction on the same profits.
Support for crypto startups in Gibraltar
Gibraltar-registered crypto companies may benefit from several initiatives created to support the development of cryptographic and other blockchain-based products and services. One is the New Technologies in Education (NTiE) group formed by the government in partnership with the University of Gibraltar and several leading cryptocurrency businesses. The group aims to offer blockchain-education technologies that are undoubtedly the driving force behind innovative business-oriented.
Another noteworthy initiative is the GCF Innovation and Development Group, whose role is to promote and facilitate innovation by clarifying regulatory issues and assisting entrepreneurs in developing effective market entry strategies for their products and services.
Our team of dedicated and quality-oriented lawyers will be happy to provide you with customized, added value support in creating a cryptocurrency company in Gibraltar, including submitting a cryptographic license application. From the beginning of the process you will receive the support of experts in the field of rapid development of legislation on AML/CFT, establishment of companies, reporting and tax advice. Contact us today to get a personalized offer.
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