On February 25, 2021, a law amending the Anti-Money Laundering Act was passed, as we've previously written about on our blog. One of the key changes implemented is the creation of a register of virtual currency activities. Some will likely see this change as a threat, fearing market overregulation and impeding cryptocurrency activity. Others, however, will see an opportunity for industry players and the possibility of solving at least some of the problems plaguing them. It's long been known that many entities, such as cryptocurrency exchange offices, struggle to operate, if only because banks are reluctant to hold accounts for such entities.
The establishment of the register may change this matter, as the adopted regulations will require persons conducting regulated activities to have the necessary experience and a clean criminal record.
Thanks to the adopted regulations, we can expect increased trust not only in entities whose activities will be regulated but also in other market participants, including those accepting payments for services or goods sold using cryptocurrencies. Medicover, for example, has enabled Bitcoin payments for medical services while ensuring that the client is not exposed to any risk related to exchange rate fluctuations during the patient's advance payment and the provision of services.
This trend may be further exacerbated by the continued increase in merchant fees charged by card issuers. A challenge facing entities seeking to enable cryptocurrency payments is the still unclear legal classification of these currencies.
It should be noted that Bitcoin does not constitute a paid means of payment within the meaning of Articles 31 and 32 of the Act of August 29, 1997, on the National Bank of Poland, so it cannot be attributed with the general ability to cancel liabilities or the attribute of possessing a specific value. Bitcoin also does not constitute electronic money, despite certain demonstrable technical similarities. However, no cryptocurrency meets the definition set forth in Article 2, item 21a of the Act of August 19, 2011, on Payment Services, according to which electronic money is "monetary value stored electronically, including magnetically, issued, with the obligation to redeem it, for the purpose of making payment transactions, accepted by entities other than the sole issuer of electronic money;"
The process of creating a bitcoin can hardly be described as an issue by an issuer. Furthermore, it is impossible to identify an entity obligated to redeem it, and its acceptance depends solely on the unanimous declaration of intent of the parties to a given contract. It is worth noting here, following the judgment of the Court of Justice of the European Union of October 22, 2015, file reference C-264/14, that cryptocurrencies "constitute a means of relieving liabilities, agreed upon by the parties to a given legal relationship, of the value that the entities accepting the possibility of relieving liabilities with cryptocurrencies are willing to assign to them."
It can therefore be concluded that the obligation will be extinguished by agreement between the parties to the contract. There is little doubt in the legal literature that an agreement under which the holder receives an item in exchange for bitcoins will not constitute a sales agreement. However, the position taken is that such an agreement constitutes an exchange agreement . Even if we deny the possibility of such subsumption in a given case, there is no doubt that such an agreement can be considered a barter agreement under which the parties exchange goods or services that, in the common belief of the parties, are of equal value .
As the Supreme Court pointed out in its judgment of 26 August 2004 (I CK 210/04): "a barter agreement exhibits features similar to an exchange agreement; it is consensual, payable, and mutual ." Therefore, when analyzing the possibility of concluding such an agreement using the example of transactions carried out by the aforementioned Medicover, it should be noted that this entity provides its client with a medical service, and the client's mutual benefit of equal value is the transfer of bitcoin from the client's virtual wallet to the Medicover virtual wallet.
It can even be said that the provision of such a client will constitute a service, the content of which will be the performance of activities necessary to ensure that the appropriate amount of bitcoins is credited to the Medicover wallet.
Generally, if such a transaction is concluded between a business and a consumer, the fact that the "payment" is made using Bitcoin will not pose a problem. As indicated in doctrine 3 : "it is in the interest of protecting the legal sphere of consumers to interpret Bitcoin directly as the price paid or expected by the consumer, i.e., as a monetary consideration, completely ignoring the nuances related to determining its structure, legal nature, and legal classification." However, in the case of such transactions, it will be necessary to avoid abusive clauses.
In summary, despite some ambiguities, the use of cryptocurrencies in current transactions will continue to grow in popularity, especially given the rising fees associated with payment card use. Further regulations at the national and EU levels regarding the cryptocurrency industry, provided they are not overly restrictive, may further increase confidence in the industry and the acceptance of cryptocurrencies in trade.
1 K. Zacharzewski, "The practical importance of bitcoin in selected areas of private law" MONITOR PRAWNICZY 4/2015, p. 187,
2 J. Dąbrowska, "The Legal Character of Bitcoin", CZŁOWIEK W CYBERSPACE 1/2017, p. 54
3 K. Zacharzewski, op. cit. p. 187,
