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posted 2 years ago
To implement a pan-European approach to crypto-assets regulation and avoid legislative fragmentation in the EU member states, on October 10, 2022, the European Parliament Committee on Economic and Monetary Affairs (ECON) settled the approved text for the Regulation of Markets in Crypto-assets (hereinafter MiCA).
MiCA would apply between 12 and 18 months after the text comes into force. The final vote on MiCA legislation was recently delayed until February 2023. MiCA will not begin to have effect until early 2024.
Range of MiCA
MiCA applies to natural and legal persons and other undertakings that are engaged in the issuance, offer to the public and admission to trading of crypto-assets or that provide services related to crypto-assets in the EU.
MiCA divides crypto-assets into 3 categories:
It should be noted that MiCA does not apply to crypto-assets that are regulated by existing EU frameworks such as financial instruments, funds, deposits, non-life or life insurance products, etc.
Non-fungible and unique tokens (NFT) are largely excluded from the scope of MiCA, except where ownership is fractionalized.
Issuers of crypto-assets other than asset-referenced tokens or e-money tokens
Only a legal person shall offer crypto-assets to the public in the EU. The main condition for the issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, is to draft and publish a crypto-asset white paper. A white paper should be notified to the competent authority 20 working days before its publication.
Any marketing communications relating to an offer to the public of crypto-assets, other than asset-referenced tokens or e-money tokens, or the admission of such crypto-assets to trading on a trading platform for crypto-assets, shall be fair, clear, not misleading, and consistent with the information in the crypto-asset white paper.
Issuers of asset-referenced tokens
To become an issuer of asset-referenced tokens (ART) legal person or other undertakings shall be authorized under the MiCA or as a credit institution. The rule above shall not apply when 12 months the average outstanding value of all ART never exceeds 5,000,000 euros or the offer to the public of the ART is solely addressed to qualified investors. Issuers of ART are also obliged to establish white papers.
Marketing communication requirements for issuers of ART are similar to those described above.
Issuers of ART shall (among other things):
Issuers of e-money tokens
An issuer of e-money tokens (EMT) shall be certified as a credit institution or an electronic money institution. The potential offeror of EMT shall notify its competent authority 40 working days before the date on which it intends to issue EMT. No issuer of EMT shall grant an interest concerning e-money tokens.
Before offering EMT to the public the issuer of EMT shall publish a crypto-asset white paper on its website. The issuer of EMT shall notify its draft crypto-asset white paper to the relevant competent authority at least 20 working days before the date of its publication.
Marketing communication requirements for issuers of EMT are similar to issuers of other crypto-assets.
Other requirements for the issuers of EMT are established in Title II and III of Directive 2009/110/EC.
Crypto-assets service providers
The following types of services are regulated under the MiCA:
According to MiCA all of the CASPs shall meet such general obligations:
Additionally, providers of the particular crypto-assets services shall comply with some specific regulatory requirements.
Summary
It is only a matter of time before the MICA legislation comes into force. The final approval of the MiCA will provide legal assurance for crypto-assets not handled by the existing EU financial services legal framework. Establishment of the uniform rules for CASPs and issuers of crypto-assets at the EU level shall increase consumer confidence in crypto-assets by bolstering consumer protection as well as establish a foundation for the further development of the cryptocurrency market.
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