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New Crypto Regulation in the EU

posted 1 year 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:

  1. Asset-referenced tokens – a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by reference to any other value or right or a combination thereof, including one or more official currencies. This includes stablecoins backed by two or more fiat currencies, crypto-backed stablecoins, and commodity-backed stablecoins. 
  2. E-money-tokens – a type of crypto-asset that purports to maintain a stable value by reference to the value of one official currency. This includes stablecoins backed by a single fiat currency.
  3. Other crypto assets, including utility tokens. A utility token means a type of crypto-asset which is only intended to provide access to a good or a service supplied by the issuer of that token.

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):

  1. Act honestly, fairly, and professionally.
  2. Communicate with the holders and potential holders of ART in a fair, clear, and not misleading manner.
  3. Maintain and operate an effective policy to prevent conflicts of interest.
  4. Notify their competent authority of any changes to their management body.
  5. Constitute and maintain a reserve of assets insulated from other assets which shall be held in custody by a third party.
  6. Have own funds equal to 350,000 euros or 2% of the average amount of the reserve assets (the higher indicator is taken into account).
  7. Grant ART holders redemption rights at all times on the issuer of ART, and on the reserve assets.
  8. Ensure good repute, and possess knowledge, experience, and skills of the management body’s members.
  9. Establish and maintain effective procedures for the handling of complaints.
  10. Establish a business continuity plan.
  11. Have internal control mechanisms and effective procedures for risk management.
  12. Establish, maintain and implement policies on the reserve of assets, the mechanism through which ARTs are issued, the protocols for validating transactions in ART, the mechanisms to ensure the liquidity of ART, etc. 

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:

  1. the custody and administration of crypto-assets on behalf of third parties; 
  2. the operation of a trading platform for crypto-assets; 
  3. the exchange of crypto-assets for funds; 
  4. the exchange of crypto-assets for other crypto-assets; 
  5. the execution of orders for crypto-assets on behalf of third parties; 
  6. placing of crypto-assets; 
  7. transfer services for crypto-assets on behalf of third parties;
  8. the reception and transmission of orders for crypto-assets on behalf of third parties; 
  9. advice on crypto-assets; 
  10. portfolio management on crypto-assets.

According to MiCA all of the CASPs shall meet such general obligations:

  1. To be authorized by a competent authority in an EU member state.
  2. Meet the requirements of the minimum share capital, which varies from 50,000 euros to 150,000 euros depending on the type of services provided by CASP.
  3. To have in place prudential safeguards equal to the amount of the minimum share capital or one-quarter of the fixed overheads of the preceding year (the higher indicator is taken into account).
  4. Act honestly, fairly, and professionally in the best interest of clients.
  5. To safe keep clients’ crypto-assets and funds and prevent their use of them for their account.
  6. To ensure good repute, possess knowledge, experience, and skills of the management body’s members.
  7. To provide appropriate policies and procedures for including anti-money laundering (AML), continuity of services, and data security.
  8. Establish and maintain effective procedures for the handling of complaints.
  9. Maintain and operate an effective policy to prevent conflicts of interest.
  10. At least one director of the CASP shall be resident in the EU.

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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