Banking Law and Digital Capital Formation in Spain

Introduction

Digital capital formation means raising, subscribing, recording, transferring, or settling capital through digital systems. In Spain, this includes online share issues, digital bonds, crowdfunding, tokenised securities, electronic shareholder registers, blockchain-based settlement, and digital incorporation of companies. Banks play an important role because they receive subscription funds, verify investors, provide payment and custody services, arrange financing, and maintain anti-money-laundering controls.

Digitalisation does not remove the traditional rules of company, banking, securities, and investor-protection law. Instead, it changes the method by which legal acts are completed and evidenced. A digital capital increase must still have a valid corporate resolution, proper subscription, payment verification, investor disclosure, registration where required, and reliable records. The key question is therefore not whether a process uses blockchain or automated software, but whether the process preserves legal certainty, transparency, and regulatory supervision.

Legal and Regulatory Framework

Spain’s principal domestic framework is Law 6/2023 on Securities Markets and Investment Services. It modernises Spanish securities law and works alongside European Union legislation on prospectuses, investment services, market abuse, settlement discipline, and market infrastructure. Where a digital token qualifies as a transferable security or financial instrument, it is generally subject to securities regulation rather than the Markets in Crypto-assets Regulation (MiCA).

Regulation (EU) 2022/858, the DLT Pilot Regime, permits authorised market infrastructures to test distributed-ledger technology in trading and settlement. It covers DLT multilateral trading facilities, DLT settlement systems, and DLT trading and settlement systems. The regime is important for Spain because it allows tokenised shares, bonds, and fund units to be issued, traded, and settled through controlled infrastructure rather than through an ordinary centralised system. However, participation remains subject to authorisation, investor safeguards, operational-resilience requirements, and regulatory reporting.

MiCA, Regulation (EU) 2023/1114, applies to crypto-assets that are not financial instruments. It can therefore affect token-based fundraising where an issuer creates utility tokens, asset-referenced tokens, or e-money tokens. Issuers may need to prepare a crypto-asset white paper containing clear information on the project, rights attached to the token, technology, risks, use of funds, governance, and liability. If a token has features similar to shares, bonds, derivatives, or units in collective investment schemes, its classification must be carefully reviewed because securities law may apply instead.

Digital capital formation is also supported by Spanish company-law reforms. Law 18/2022, known as the Create and Grow Law, promotes quicker company formation and greater use of digital procedures. Spain has also expanded electronic notarial and registry processes. These reforms make it easier to establish companies and document capital contributions, but they do not eliminate mandatory corporate formalities. A capital increase in a Spanish company still requires the correct decision of shareholders or directors, observance of pre-emption rights where applicable, and registration in the Commercial Registry.

Banks must additionally comply with Law 10/2010 on the prevention of money laundering and terrorist financing. They must identify subscribers, beneficial owners, politically exposed persons, source of funds, and unusual payment patterns. Where tokenised capital is raised, the bank should not rely solely on a wallet address. It should connect the digital address, customer identity, payment account, transaction purpose, and supporting documents.

Key Issues and Principles

Classification is the starting point. The same digital instrument may be a share, bond, fund unit, electronic-money token, asset-referenced token, or unregulated utility token. The classification determines whether the issuer needs a prospectus, a MiCA white paper, investment-firm authorisation, or approval to operate a DLT market infrastructure.

Investor disclosure must be complete and fair. Digital distribution can reach investors rapidly, including retail customers. Banks and platforms must ensure that promotional material does not conceal volatility, illiquidity, technological failure, dilution, conflicts of interest, or the absence of deposit-guarantee protection.

Payment finality and custody are crucial. A capital subscription is not safely completed merely because a blockchain transaction appears on a public ledger. The parties must establish when ownership transfers, when payment is final, who controls private keys, and what happens if a smart contract fails or a key is lost.

Corporate records must remain reliable. Electronic registers, shareholder lists, subscription agreements, board approvals, and digital signatures must be preserved in a readable and verifiable format. Banks should retain auditable records of payment flows and compliance decisions.

Cross-border activity creates additional risk. An online offer may attract investors outside Spain. The issuer and its bank must consider prospectus passporting, marketing restrictions, tax reporting, data protection, sanctions screening, and foreign exchange issues.

Case Laws

Hedqvist v Skatteverket, C-264/14, Court of Justice of the European Union – Bitcoin exchange could be treated as a VAT-exempt financial transaction. The case shows that legal treatment depends on the economic function of a digital asset.

Geltl v Daimler AG, C-19/11, Court of Justice of the European Union – information may become “inside information” even where a process develops through several intermediate steps. This is relevant when digital capital raising involves confidential financing negotiations or token issuances.

Lafonta v Autorité des marchés financiers, C-628/13 – information must be precise enough to influence an investor’s decision before it qualifies as inside information. Digital issuers must assess carefully when project information requires disclosure.

STS 326/2019, Spanish Supreme Court – Bitcoin was treated as a digital asset rather than legal money for criminal-restitution purposes. The decision highlights the need to distinguish digital ownership from conventional cash claims.

SEC v Telegram Group Inc., 448 F. Supp. 3d 352 (S.D.N.Y. 2020) – a token sale and its planned distribution were assessed together when determining regulatory consequences. Although not binding in Spain, it is persuasive for analysing tokenised capital schemes as a whole.

SEC v Kik Interactive Inc., 492 F. Supp. 3d 169 (S.D.N.Y. 2020) – the substance of a token offering, including fundraising purpose and investor expectations, was more important than its label. Spanish issuers should therefore avoid assuming that calling an instrument a “utility token” removes securities-law obligations.

Conclusion

Digital capital formation can make Spanish fundraising faster, more accessible, and more transparent, but it must remain legally structured. Banks should treat digital issuance as a combined company-law, securities-law, payment, AML, technology, and consumer-protection exercise. Proper classification, reliable digital records, verified payment flows, suitable investor disclosures, and effective governance are essential. Spain’s future market will increasingly use DLT and tokenisation, but legal certainty will depend on ensuring that innovation does not weaken investor rights or regulatory oversight.