A token is a security when it represents an economic right over an issuer, such as a share, a bond or a fund interest. It is a utility token when it only grants access to a service. The difference determines the regulator, the paperwork, the cost and the speed to market: security tokens are governed by Ley 6/2023 and MiFID II, not MiCA.
«Is my token a security or a utility?» It is the first question of any tokenization project in Spain and its answer determines the supervisor, the paperwork, the cost and the speed to market. This article gives you the criteria to decide it, with a step-by-step test and a specific case. For entrepreneurs and legal teams in the qualification phase; it is not an investment guide.
The short answer
The label is not put by you; it is put by the legal substance of the right that the token incorporates. If what your token gives to the holder resembles a share, a bond, a fund participation or a derivative, it is a security token and is governed by the Ley 6/2023 de los Mercados de Valores y de los Servicios de Inversión (LMVSI) and by MiFID II. If it does not fit there, it normally falls under MiCA, whether as an asset-referenced token (ART), an electronic money token (EMT) or «other crypto-asset» (Title II MiCA), which is what the market colloquially calls «utility token».
Important: MiCA does not use the word «utility token» in its articles. It speaks of «other crypto-assets» of Title II. And the fact of not being a security token does not mean being «outside regulation»; it means being under MiCA, with its own obligations (white paper, CNMV supervision, commercial communications regime of art. 7 MiCA).
The test in four questions
Do them in this order. Stop as soon as one of them gives a «yes».
- Does the token incorporate typical rights of a MiFID II financial instrument? (Annex I, Section C: shares, bonds, CIU participations, derivatives.) If yes → security token. LMVSI. Stop.
- Does the token reference the value of an official currency and is it redeemable at par? If yes → EMT. Title IV MiCA. Banco de España. Only a credit institution or an electronic money institution can issue it (Directive 2009/110/EC + Ley 21/2011). Stop.
- Does the token reference a basket of assets, currencies, or commodities to maintain a stable value? If yes → ART. Title III MiCA. Bank of Spain. Stop.
- Is your case outside the exclusions of art. 2 MiCA (genuinely unique NFT, deposits, CIU, insurance, full decentralization without an intermediary)? If yes → «other crypto-asset» of Title II MiCA. CNMV. Notified white paper.
For borderline cases, check your classification against the ESMA Guidelines ESMA75-453128700-1323 (17 Dec 2024): they are the harmonized European interpretive test and the CNMV applies it.
Practical comparison
| Dimension | Security token | «Other crypto-asset» Title II MiCA | ART | EMT |
|---|---|---|---|---|
| Main rule | MiFID II + LMVSI + Prospectuses | MiCA Title II | MiCA Title III | MiCA Title IV + DME2 + Ley 21/2011 |
| Supervisor in Spain | CNMV | CNMV | Bank of Spain | Bank of Spain |
| Document to the supervisor | Issuance document (art. 7 LMVSI) and, where applicable, prospectus (Reg. 2017/1129) | Notified white paper (arts. 6 and 8 MiCA) | Specific white paper + authorization | Specific white paper + authorization (only credit institution/EDE) |
| Registry | ERIR (art. 8 LMVSI) | Custody by authorized CASP or self-custody | Reserves + custody | E-money accounts |
| Trading | Regulated markets, MTF, OTF; or DLT infrastructures (Reg. 2022/858) | Via MiCA CASP | Via MiCA CASP | Via MiCA CASP + payment channels |
| Advertising as investment | MiFID II + LMVSI regime | Art. 7 MiCA | Art. 7 MiCA | Art. 7 MiCA |
What the commercial label does not decide
The market sometimes tries to dress up a token as a «utility» that economically distributes profits or represents a share of capital. That does not save the qualification: the CNMV and ESMA apply substance over form (art. 4 MiFID II). If the token works like a share, it will be treated as a share even if the whitepaper says «it is only access to the platform».
In short: the qualification is not marketing. It is a legal analysis that should be done in writing, with judgment, and before technical development.
Case: SaaS platform that wants to launch a discount token
A SaaS company wants to launch a token that gives access to premium features and discounts on its product. The token is freely transferable. There is a pre-sale with an expectation of appreciation.
- Does it give an economic right such as a dividend or coupon? No.
- Is it redeemable for money at par? No (it is not an EMT).
- Does it reference a basket of assets? No (it is not an ART).
- Does it fall under any exclusion of art. 2 MiCA? No.
- Result: «other crypto-asset» of Title II MiCA. White paper notified to CNMV before the offer. Its marketing communications are governed by art. 7 MiCA. Circular 1/2022 of the CNMV, which added national requirements for crypto-asset advertising, has been repealed since 28 December 2024.
- Warning: if the pre-sale promises appreciation linked to the company's financial metrics, the qualification could revert to security. Document the rationale for the qualification.
Why getting it right matters
Misqualifying costs:
- If you issue as a MiCA crypto-asset something that is a security: you breach LMVSI (omitted prospectus, absence of ERIR, MiFID conduct), with its own sanctioning regime.
- If you over-regulate a project that is “another crypto-asset” under MiCA as a security: you make it more expensive unnecessarily and delay the launch by months.
- If you think MiCA is “no regulation”: you skip the white paper, the CNMV notification and the marketing communications rules, with a likely fine.
What to do now
- If the test gives you security, follow the guide to issuing a security token in Spain.
- If it gives you “other crypto-asset” under MiCA, prepare a white paper and CNMV notification; also check whether you will need CASP authorization for services on the token.
- If it gives you ART or EMT, the route is the Bank of Spain and, for EMT, prior authorization as a credit institution or electronic money institution.
- If it gives you a “grey area”, do not improvise: document the ESMA 2024 analysis and consult before investing in development.
Related reading (MiCA 2026 cluster)
- Classifier: is your token a security token or does it fall under MiCA?. It classifies your case at a glance (LMVSI/MiFID II vs MiCA) according to the right it incorporates.
- Tokenizing copyright (music and audiovisual): royalties as a security token vs NFT.
- How to avoid becoming a security token unintentionally: features that turn a utility into a security and how to avoid them.
- Tokenization of shares in Spain: how to open up your capital: why it requires a SA and not an SL, and how the equity token is issued.
- What is asset tokenization: 2026 guide for companies. The pillar guide: what it is, what you can tokenize and the legal framework in Spain.
- STO vs MiCA crypto-assets: why security tokens do NOT fall under MiCA (but do under LMVSI): complete decision matrix and real-world cases when tokenizing an asset.
- MiCA July 2026: what changes on 1 July for issuers and CASPs in Spain: what the CNMV activates on 1 July 2026 and how it affects each issuer profile.
Frequently asked questions
What is a security token?
A security token is the blockchain representation of a transferable security: a share, a bond, a participation. It is governed by the regulations of the security it incorporates (LMVSI and MiFID II, with the CNMV as supervisor), not by MiCA. Do not confuse it with the “security token” of online banking, the two-factor code or device used to authenticate you: they share a name and are unrelated.
What is the difference between a security token and a utility token?
It is decided by the legal substance of the right incorporated in the token. If it resembles a share, a bond, a fund participation or a derivative, it is a security token and is governed by LMVSI and MiFID II (CNMV). If not, it normally falls under MiCA as an ART, an EMT or an “other crypto-asset” under Title II, which is what the market colloquially calls a utility token. MiCA does not use the term utility token.
Is a utility token outside regulation?
No. Not being a security token does not mean being outside regulation: it means being under MiCA, with a white paper, CNMV supervision and the marketing communications regime of Art. 7 of MiCA.
Who decides the classification of my token, me or the supervisor?
Substance, not marketing. The CNMV and ESMA apply the principle of substance over form (Art. 4 MiFID II): if the token works like a share, it will be treated as a share even if the whitepaper says it is “only access to the platform”. For borderline cases, the reference is the ESMA Guidelines ESMA75-453128700-1323.
Who supervises each type of token in Spain?
Security tokens and “other crypto-assets” under Title II of MiCA are supervised by the CNMV. Asset-referenced tokens (ART) and electronic money tokens (EMT) are supervised by the Bank of Spain.
Can I label a token that distributes profits as a utility?
No. If it economically distributes profits or represents a portion of capital, the classification will be a security even if the whitepaper presents it as a utility. It is advisable to document in writing the reason for the classification before technical development.
Notice
Informational content. It does not constitute legal, tax or investment advice. HokenFi is a software and infrastructure provider; it does not provide regulated services. Verify the current version of the cited rules at BOE and EUR-Lex.
Cited regulations
- Regulation (EU) 2023/1114 (MiCA): CELEX 32023R1114 (Arts. 2, 4-14, 6 and 8, Title III, Title IV, Title V, Art. 7, Art. 93).
- Directive 2014/65/EU (MiFID II): CELEX 32014L0065 (Art. 4 and Annex I, section C).
- Regulation (EU) 2017/1129 (Prospectus): CELEX 32017R1129.
- Regulation (EU) 2022/858 (DLT Pilot Regime): CELEX 32022R0858.
- Directive 2009/110/EC (EMD2): CELEX 32009L0110.
- ESMA Guidelines: ESMA75-453128700-1323 (17 Dec 2024).
- Ley 6/2023 de los Mercados de Valores y de los Servicios de Inversión (LMVSI): BOE-A-2023-7053 (arts. 6, 7, 8, 246).
- Real Decreto 814/2023: BOE-A-2023-22764 (financial instruments, admission to trading, registry of securities and regime of the ERIR).
- Real Decreto 815/2023: BOE-A-2023-22765 (official registers of the CNMV, cooperation and supervision of ESIs).
- Ley 21/2011 de dinero electrónico: BOE-A-2011-12909.
- CNMV Circular 1/2024 - BOE-A-2024-27149, which repeals Circular 1/2022 on crypto-asset advertising as of 28 December 2024.
