Is Bitcoin a Security? The Legal Position in Germany, Austria and Switzerland

Short answer: No, bitcoin is not a security, neither in Germany nor in Austria, Switzerland or the US. A security represents a right against someone, such as a share in a company or a claim. Bitcoin has no issuer you could hold a right against. The law therefore puts bitcoin in a category of its own: in the EU a crypto-asset, in Switzerland a payment token, in the US a commodity (as of 13.11.2026).

The question sounds academic but has practical consequences. Whether something is a security decides which authority is responsible, what duties the provider has, whether you get a prospectus and how the gain is taxed. This article goes through the countries one by one and then shows what follows for you.

What makes a security

At its core, a security is a transferable right against someone. A share gives you a stake in a company: voting rights, dividends, a share of its assets. A bond gives you a claim against the debtor: interest and repayment. A fund unit gives you a share in a pool of assets that a fund company manages.

There is always an issuer on the other side. It has to inform investors, is liable for false statements and can go bankrupt.

With bitcoin, this other side does not exist. New bitcoin are created by mining as the reward for new blocks, under rules that all nodes enforce together. Owning bitcoin gives you no claim against anyone, no stake in a company and no right to a payout. You have control over an amount in the network, secured by your private key.

Germany: a crypto-asset, not a security

Supervisory law

The Securities Trading Act (WpHG) lists in § 2(1) what securities are: shares, comparable stakes, debt instruments such as bonds and certificates. Bitcoin fits none of these groups because no right against an issuer is represented.

The financial supervisor BaFin classified bitcoin as a financial instrument as early as 2013, at the time as a "unit of account". From 2020, the Banking Act (KWG) listed "crypto-assets" as a separate group of financial instruments, explicitly alongside and not as securities. Anyone holding bitcoin for customers needed a BaFin licence for "crypto custody business".

Since 30.12.2024 the EU regulation MiCA applies. In Germany it is complemented by the Crypto Markets Supervision Act (KMAG), which sets out BaFin's responsibility and the details of supervision. The basic point does not change: bitcoin is a crypto-asset, not a security.

The Electronic Securities Act (eWpG) of 2021 does not make bitcoin one either. It allows real securities such as bonds to be kept on a blockchain, as "crypto securities". That is a security using a blockchain. Bitcoin, the other way round, is a blockchain without a security.

Tax law

For the tax office, bitcoin is neither money nor a security but an "other asset". The Federal Fiscal Court confirmed this in its ruling of 14.02.2023 (IX R 3/22), and the Finance Ministry's letter of 06.03.2025 follows it. Gains from private assets are therefore private sales transactions under § 23 of the Income Tax Act:

• Sale after more than one year: tax-free.
• Sale within one year: taxed at your personal rate, but only if all private sales gains of the year reach 1’000 € (exemption limit).

If bitcoin were a security, the flat withholding tax of 25 % plus solidarity surcharge would apply, with no holding period. For long-term holders, being an "other asset" is a big advantage. All details are in the guide Bitcoin taxes in Germany.

Austria: a crypto-asset, taxed alongside shares

In Austria, too, bitcoin is not a security under capital markets and securities supervision law. Bitcoin is a crypto-asset under MiCA, and the responsible supervisor is the Financial Market Authority FMA. Before MiCA, providers in Austria had to register with the FMA, but only for anti-money-laundering supervision.

For tax, Austria takes its own route. Since the eco-social tax reform, cryptocurrencies count as income from capital assets (§ 27b of the Income Tax Act). For bitcoin bought from 01.03.2021, a sale is taxed at the special rate of 27.5 %, as with shares and bonds, with no holding period. Bitcoin bought up to 28.02.2021 (old holdings) remain tax-free under the old rules.

This is the key difference: for tax, Austria treats bitcoin much like a security, but legally it is still not one. The tax rule sits in a section of its own for cryptocurrencies. How to report it is shown in Bitcoin taxes in Austria.

Switzerland: a payment token, not a security

Switzerland is not in the EU, so MiCA does not apply there. What counts are the guidelines of the financial supervisor FINMA on initial coin offerings of 16.02.2018. They sort tokens into three groups by function:

Bitcoin is the textbook example of a payment token. FINMA does not treat payment tokens as securities. But anyone who transfers or exchanges bitcoin for others is subject to the Anti-Money Laundering Act: they need a FINMA licence or membership of a self-regulatory organisation.

Since 2021 there has also been the DLT Act. Among other things, it provides that crypto-assets a provider holds for you are handed over to you in its bankruptcy and do not become part of the bankruptcy estate (Art. 242a of the Debt Enforcement and Bankruptcy Act). This protection exists specifically for crypto-assets, precisely because they are not securities in a custody account.

The Federal Tax Administration (ESTV) treats bitcoin as movable private assets, similar to a foreign currency. Capital gains from private assets are tax-free; the holdings are subject to wealth tax. Where taxable trading begins, the ESTV checks with the criteria of Circular No. 36, which was actually written for securities. Bitcoin is not a security; the criteria only apply by analogy. Where the line lies is explained in Professional securities trading with bitcoin.

EU: a crypto-asset without an issuer

Regulation (EU) 2023/1114, MiCA for short, defines a crypto-asset as a digital representation of a value or a right that can be transferred and stored electronically using distributed ledger technology. That applies to bitcoin.

The boundary matters: MiCA explicitly does not apply to crypto-assets that already qualify as financial instruments under the markets directive MiFID II. A token that works like a share or a bond falls under securities law, not MiCA. So the fact that bitcoin falls under MiCA means, in turn: in the EU, bitcoin is not a financial instrument in the sense of securities law.

Within MiCA, bitcoin is a special case. Anyone offering crypto-assets to the public normally needs a MiCA white paper. There is an exemption for crypto-assets created automatically as a reward for running the network (Art. 4(3)). So bitcoin has neither an issuer nor a white paper obligation. Only the firms that offer services with bitcoin are regulated. What this changes for you as a holder is shown in MiCA and bitcoin.

US: not a security for the SEC, a commodity for the CFTC

In the US, the Howey test of 1946 decides whether something is a security, more precisely an "investment contract". The question is: do investors put money into a common enterprise and expect profits from the efforts of others? With bitcoin, there is no common enterprise with a team whose work investors rely on.

• CFTC: the regulator for futures and commodity markets found in 2015, in its case against Coinflip, that bitcoin is a commodity under the Commodity Exchange Act. Bitcoin futures are therefore under its supervision.
• SEC: the securities regulator has never treated bitcoin as a security. When it approved the first spot bitcoin ETPs on 10.01.2024, its then chair Gary Gensler spoke in his statement of products that hold one non-security commodity: bitcoin.

The difference from many other coins is clearest here. For tokens with a founding team and a token sale, the SEC has argued in many cases that they are securities. For bitcoin, never.

The five legal systems compared

As of 13.11.2026.

Why the classification matters to you

Licence: who may sell you bitcoin?

Because bitcoin is not a security, an ordinary securities licence is not enough to hold or trade it. In the EU, a provider needs a MiCA authorisation. A bank with a securities account may only offer you real bitcoin if it has this authorisation or works with an authorised partner. In Switzerland, the provider needs the licence or affiliation under the Anti-Money Laundering Act.

Investor protection: what protects you and what doesn't

There is no prospectus for bitcoin, because there is no issuer that could be liable. There is no deposit guarantee either. At an exchange, you are protected by the duty to keep customer coins separate (MiCA; in Switzerland Art. 242a of the Debt Enforcement and Bankruptcy Act). You are best protected with your own wallet: then your bitcoin don't depend on any provider.

Tax: the legal provision makes the difference

The classification determines which tax rule applies. An example shows how big the difference is.

ETP: a security on bitcoin

Because bitcoin itself is not a security, a bank cannot simply book it into a securities account. The financial industry's solution is the bitcoin ETP: a debt instrument that the issuer backs with real bitcoin held by a custodian. The ETP is a security, with a prospectus, ISIN and key information document. In return you only have a claim against the issuer, not the bitcoin themselves.

There are no bitcoin ETFs in the EU, because funds under the UCITS rules must be diversified. In the US, spot bitcoin ETFs are legally trusts whose shares are registered as securities. In both cases the content is bitcoin and the wrapper a security.

For German tax, the ETP follows bitcoin under one condition: if it represents a claim to delivery of the deposited bitcoin or of their sale proceeds, the one-year holding period applies here too, according to the Finance Ministry's letter of 06.03.2025. In Austria, the ETP is taxed at 27.5 %. Whether an ETP or real bitcoin suits you better is compared in Bitcoin ETP or real bitcoin.