That would mean that 13 BTC machines in Germany have to be shut down tonight ! Here is the overview of the BTC machines that get closed tonight.
To our knowledge, there is no legal basis of which BaFin should prohibit the operation of Bitcoin machines in Germany. Nevertheless, a few years ago, BaFin declared its unilateral responsibility, and maintains the provisionally legally binding view that the operation of Bitcoin machines is a financial service subject to a permit or similar.
In this sense, one can not speak of a general intention of the BaFin to prohibit the operation of Bitcoin machines in Germany, but in any case, it makes significant demands on the operators, in practice, probably only by banks and bank-like financial service providers to meet are.
In this self-appointed supervisory role, however, the BaFin’s view was already recognized by the Berlin Court of Appeal in a judgment in the fall of 2018 as inaccurate, and in turn the BaFin’s unauthorized right-wing intervention was reprimanded. (https://www.online-und-recht.de/urteile/Handel-mit-Bitcon-ist-nicht-strafbar-da-Bitcoin-kein-Finanzinstrument-im-Sinne-des-KWG-Kammergericht-Berlin-20180925 /)
Unfortunately, this criminal classification does not have to be administrative as well, and an administrative court might be able to decide in exactly the opposite way, as some lawyers are supposed to do.
To put it in a slightly simpler language: it’s complicated.
Most subject-specific lawyers agree that Bitcoin is not subject to the supervision of BaFin and therefore there is no authorization requirement. Nevertheless, as the operator of a machine, it may happen that you receive “BaFin Post” which prohibits your operation. In this case, you may be forced to defend yourself legally, which is usually associated with a significant risk cost. Consequently, from an entrepreneurial point of view, it is seldom attractive to operate a vending machine, with which alone the “threat” of BaFin leads to a de facto “ban” on Bitcoin vending machines.
Unfortunately, a way out of this stagnation can only exist if an operator actually takes the risk of bringing about legal clarification. As a Federal Association Bitcoin we are happy (financially) support available, should find an operator who is willing to take on these strains.
For this reason, we are also involved in the action “please1bitcoin.de” and provide the necessary legal backing for this, but so far without reaction from the BaFin. As long as there is no final clarification on this issue, my personal advice to a purely commercial interested entrepreneur would be to refrain from operating Bitcoin machines, since the risk and the return are hardly reasonably proportionate , said Bastian Lipp.
Mondo Media GmbH
In contrast to our legal opinion, BaFin means that the establishment of a Bitcoin machine is a license subject to authorization. Financial services, including the purchase and sale of Bitcoin by BaFin, even if the scope of these transactions objectively does not require commercial operation, are provided commercially if, as in our case, the operation is for a certain duration and the operator pursues it for the purpose of making a profit.
In a ruling on 25.09.2018, the Federal Court of Appeals in Berlin did not classify Bitcoins as part of the group of financial instruments. However, criminal judgments have no direct impact on administrative law. In this respect, we have to deny the administrative court and hope that we get right. This can unfortunately be a long way, said the managing director Helmut Lechner.
Today, the deadline has expired and Mondo Media GmbH has to stop operating 13 BTC machines starting at 00:00 am tonight.
Of course we at Bitcoin-Accepted.org do not want to take that easy and will fight against the verdict with various clubs and foundations.
If you also doubt this verdict of BaFin and want to support us, our door or phone is at your disposal at any time. We now need a strong community to show the BaFin that there can also be resistance.
Of course, we will continue to post news on this topic and keep you up to date.