Abstract

Digital tokens continue to arouse many controversies. Probably the most urgent one concerns the current legal framework for their mass offering in the process typically known as initial coin offering (ICO). It may seem that such processes are not currently covered by any supervisory regulations. It is supposed to be mainly due to the impossibility of recognizing tokens as „securities” and in general as „financial instruments” within the meaning of Directive 2014/65/EU on markets in financial instruments. This position does not seem to be accurate. It is, therefore, worth using the context of digital tokens and their public offering to revise the conceptual category of „a security” used primarily in the field of prospectus regulations, i.e. primarily aimed at protecting small investors and not balancing the interests of debtors and creditors. With a view to an ever more frequent marriage of finance and technology (FinTech), the need to ensure an EU-consistent interpretation of national law, as well as technological neutrality -- same activities, same risks, same rules, same supervision approach, a relevant review of this conceptual category seems indispensable now.