FI: standardised, transferable capital-market claims count as securities

A proprietary right, obligation or contract can be a transferable security within the meaning of the Väärtpaberituru seadus where its substance is that of an ordinary capital-market transaction and it is transferable on the capital market and standardised in nature.FI Those features are assessed on the commercial and legal relationship as a whole: the purpose of the activity, the context, the nature of the instrument, and the terminology used, which may leave even an average consumer or investor with the impression of a security or a regulated financial service. Constructions built to sidestep requirements or to create regulatory arbitrage must be seen through.

The economic pattern is familiar: one person raising capital seeks money from many others through a contract, right or obligation that is transferable on the capital market and standardised. No single feature is necessarily decisive, but their combined effect can indicate a security, and the name or form of the transaction does not decide.

Transferability means the general capacity to be transferred: ESMA's Krüptojuhis treats the abstract possibility that the contract, right or obligation can be transferred or traded as sufficient. Limits on transferability must be inherent, for example in company law for shares or mandatory debt law for debt claims. The European Court of Justice has explained that a share falls outside the concept only where its transfer would be impossible or extremely difficult, and the fact that the undertaking itself creates no environment for transfer does not make it so. Specific, temporary or contractually agreed limits need not exclude transferability: a proprietary right can remain transferable even where the issuer tried to rule transfer out by contract.

Capital market is read broadly and is not confined to trading venues within the meaning of the Väärtpaberituru seadusFI. Whether the issuer built a secondary market or platform is not decisive; what matters is that the security could at least theoretically trade, with transfer unobstructed and the instrument standardised. The Court has confirmed that trading includes the issuer's offer and the investor's subscription, so primary-market transactions count, and a capital market can form between issuer and investors wherever the issuer publicly addresses indefinite persons holding investable capital.

Standardisation turns on sameness: the rights are issued by one and the same person and investors receive the same rights.FI Where an undertaking raises capital from many persons on exactly identical loan contracts, with the same interest rate and maturity for all and only the amount lent differing, the result may be bonds or securitised debt in another form under Article 4(1)(44)(b) of Directive 2014/65/EU. An ordinary individually negotiated loan is not a security merely because a monetary claim flows from it, and syndicated loans from several institutional lenders generally produce none either, though securitised syndicated claims circulating among investors cannot be ruled out in every case.

Anyone raising capital through transferable securities must meet prospectus or information-document disclosure duties.FI Giving investment advice on such securities, taking investment decisions for clients, arranging issuance, or operating an environment that promotes transferability needs an investment-firm licence under §§ 40 and 48 of the Väärtpaberituru seadus, and business models should not be engineered to dodge that duty where the substance is investment services. Crowdfunding services within Article 2(1)(a) of Regulation (EU) 2020/1503 need its Article 3 licence, assessed on actual economic substance. The memorandum creates no new norms; anyone in doubt about their activity should bring in relevant expertise.

Legal basis: Väärtpaberituru seadus § 2(1); Directive 2014/65/EU Article 4(1)(44)(b); Regulation (EU) 2017/1129; Regulation (EU) 2020/1503 Articles 2(1)(a) and 3; Finantsinspektsioon memorandum no. 4.11-3.2/7883 of 11 November 2026 on Kaubeldav väärtpaber.