Since our last newsletter, several publications by ESMA have provided further clarity on various aspects of the Markets in Crypto-Assets Regulation (“MiCA Regulation” or "MiCAR").
Public statement on crypto services for non-Mica ARTs and EMTs
On 17 January 2025, ESMA published a public statement addressing the provision of certain crypto-asset services in relation to non-MiCA compliant asset-referenced tokens ("ARTs") and electronic money tokens ("EMTs"). In its statement, ESMA urged crypto-asset service providers ("CASPs") to comply with MiCAR, which took effect on 30 June 2024. The regulation requires CASPs to cease providing services that amount to offering to the public or seeking admission to trading of non-MiCA compliant ARTs and EMTs in the EU. ESMA emphasised that the cessation of such services had to be finalised by the end of January 2025. To assist EU investors in liquidating or converting their holdings in non-MiCA compliant ARTs and EMTs, CASPs have been granted an extended period—until the end of Q1 2025—to continue offering services for these products on a "sell-only" basis.
The statement also underscores the importance of clear communication with investors and a coordinated transition to preserve market stability. Additionally, ESMA highlighted its appreciation for the European Commission's Q&A, which clarified which crypto-asset services within the EU may qualify as either public offerings or admissions to trading, in accordance with Articles 16(1) and 48(1) of MiCAR.
Opinion on MiCA's RTS on conflicts of interest for CASPs
On 24 January 2025, ESMA published an opinion on regulatory technical standards (“RTS”) outlining specific requirements regarding conflicts of interest for CASPs under MiCAR. The opinion addresses ESMA’s feedback on the European Commission’s proposed amendments to the RTS under Article 72(5) of MiCA. While ESMA recognises the importance of striking a balance between investor protection, financial stability, and innovation, it has suggested modifications to the Commission’s proposed amendments.
To reflect these changes, ESMA submitted a revised draft, which is elaborated upon in the opinion and its annex. Moving forward, the European Commission may choose to adopt the RTS with amendments it deems appropriate or reject the revised draft altogether. Additionally, the European Parliament and the Council hold the right to object to any RTS adopted by the Commission within a three-month window.
Supervisory briefing on authorisation of CASP’s under MiCA
On 31 January 2025, ESMA released a shortened version of its supervisory briefing to assist market participants in navigating MiCA authorisations. The briefing aims to ensure that national competent authorities (“NCAs”) apply MiCA requirements consistently when authorising CASPs. It advocates a risk-based approach, urging NCAs to subject higher-risk CASPs to stricter scrutiny. Moreover, it provides detailed guidance on assessing governance structures, organisational substance, and outsourcing arrangements to ensure alignment with MiCA and related frameworks, such as DORA. The briefing also includes recommendations for evaluating the business plans of prospective CASPs.
Recent ESMA guidelines
On 26 February 2025, ESMA published the following guidelines, which shall apply 60 calendar days from the date of their publication on ESMA’s website in all official EU languages :
- guidelines on the procedures and policies, including the rights of clients, in the context of transfer services for crypto-assets under MiCA on investor protection. These guidelines apply to competent authorities and, CASPs that act as providers of transfer services for crypto-assets on behalf of clients within the meaning of Article 3 (1)(26) of MiCA. Developed by ESMA in collaboration with the EBA, these guidelines aim to ensure consistent and effective supervision under Article 82 of MiCA. They clarify the requirements for CASPs offering transfer services, focusing on procedures, client rights, and policies. By doing so, ESMA seeks to enhance investor protection. The guidelines also align with relevant rules under PSD2, particularly for electronic money tokens (“EMTs”)
- guidelines on the specification of Union standards for the maintenance of systems and security access protocols for offerors and persons seeking admission to trading of crypto-assets other than ARTs and EMTs. The guidelines apply to competent authorities and to ‘offerors’ as defined in Article 3(1)(13) of MiCA and persons seeking admission to trading of crypto-assets other than ARTs or EMTs. Also developed with the EBA, these guidelines set EU standards for offerors and those seeking trading admission under Article 14(1)(d) of MiCA. They outline requirements for maintaining secure systems, access protocols, and related policies. They aim to ensure a consistent interpretation and application of MiCA provisions across the Union.
- guidelines on situations in which a third-country firm is deemed to solicit clients established or situated in the EU and the supervision practices to detect and prevent circumvention of the reverse solicitation exemption under MiCA. They apply to competent authorities, and as regards Section 5, third-country firms. Based on Article 61(3) of MiCA, these guidelines aim to ensure uniform and effective supervision across the EU. They clarify when a third-country firm is considered to be soliciting EU clients and promote consistent regulatory approaches. They outline supervisory practices to detect and prevent the misuse of Article 61, helping to prevent circumvention of MiCA rules.
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