15/10/2024
Published in
Diario de Navarra
Eduardo Valpuesta Gastaminza
Full Professor from Commercial Law. Director of the Master's Degree of Digital Law of the University of Navarra.
Last week, a possible irregularity in the management of funds for the acquisition of cryptocurrencies has been in the news in our Autonomous Community. It is not the first, and possibly not the last. And it is not because everything surrounding this "crypto world" is, as its name suggests, somewhat obscure and enigmatic. Perhaps as cryptic as the cryptocurrencies themselves, which are ethereal, digital entities, without physical representation, which have no value in themselves, but which nevertheless manage to attract fervent support and investment for no one knows exactly what reason.
It goes without saying that neither cryptocurrencies nor their trading constitute fraud or have illicit connotations. A cryptocurrency is a digital asset created to make payments in cyberspace as an alternative to bank payments. The best known of them, bitcoin, was a revolutionary technique to make cheap, fast and secure payments incorporating a whole series of real and tested advantages. The problem is that from this positive and valuable idea, the vast majority of cryptocurrency purchasers do not buy them to use them as a means of payment, but simply as a form of speculative investment, because they expect their price to rise and thus make a profit. And also, paradoxically, the cryptocurrency market has created a whole series of "intermediaries" that control the system of creation or mining of the coins and the handling of payments, so that we have fled from some intermediaries to fall into the networks of others, and to avoid a classic capitalist system we have created another alternative economicist and speculative system.
But let's go back to the previous statement: cryptocurrencies are neither fraudulent nor speculative per se. What is happening is that some people who present themselves as proven, advanced and seasoned businessmen have used their supposed value to deceive many individuals. What all these organizations that are being investigated are accused of is that the money obtained from investors was not dedicated to the buying and selling and trading of cryptocurrencies, but to refund the funds to those who requested their recovery, and to the managers' own expenses. In other words, the "pyramid scheme of a lifetime". The main lure of this operation are the high interests, but normally high interests that one sees reflected in the "virtual" account, so that the digital balance grows and grows ... until the moment when the unwary investor decides to convert it into official money, which is what he is really looking for. This is the moment when the "good words" turn into "excuses": administrative problems, the external depositary is going through economic problems, etc. In all the cases that are under judicial investigation this is what is evidenced by evidence, and of course the managers will be able to prove that the money obtained was really destined to the trading of cryptocurrencies and that the impossibility of return is due to factors external to the manager's operations.
As we say, the blame for all this is not only on cryptocurrencies, but also on those who present themselves as their managers without being so. Already in 2018, the EU and Spanish financial authorities warned of the risks of investing in cryptocurrencies(volatility of their value and lack of regulation, fundamentally). For greater fiscal control, legislation was amended to oblige intermediaries in these markets to know and transmit the data of cryptocurrency holders, and in 2022 a register of intermediaries was created at the Bank of Spain. Finally, in 2023 a Community Regulation on cryptoassets was approved, which imposes a series of relevant obligations on the intermediaries of these markets. It is still a very volatile market, but at least now with some regulation and intervention of its operators.
The problem is that if instead of buying cryptoassets through registered and controlled intermediaries what we do is submit our money to whoever is supposedly going to invest in cryptoassets, we are playing Russian roulette of a possible scam. The "crypto world" has created this confusing magma of new values-without-intrinsic-value, of digital intermediaries, of supposed benefits for irrational and inexplicable value increases, and some are fishing for profits in this sea of doubts and insecurities. It is in these situations that we remember the advice of our elders: "Nobody gives a penny for a nickel". Possibly young people no longer know what pesetas or hard currency are, but they understand the background of this admonition.