The three European supervisory authorities (EBA, EIOPA and ESMA – the ESAs) today published joint guidelines intended to facilitate consistency in the regulatory classification of crypto-assets under MiCAR. The guidelines include a standardized test to promote a common approach to classification as well as templates that market participants should use when reporting the regulatory classification of a crypto-asset to supervisory authorities.
To help market participants and supervisors adopt a converged approach to the classification of crypto-assets, the Model Explanations and Legal Notices provide descriptions of the regulatory classification of crypto-assets in the following cases :
- Asset-referenced tokens (ART): The white paper for the issuance of ART must be accompanied by a legal opinion explaining the classification of the crypto-asset – including the fact that it is not an asset-referenced token. electronic money (EMT) or a crypto-asset excluded from the scope of MiCAR.
- Crypto-assets that are not ARTs or EMTs in the MiCAR sense: The crypto-asset white paper must be accompanied by an explanation of the classification of the crypto-asset – in particular that it is not a an EMT, an ART or a crypto-asset excluded from the scope of MiCAR.
The general objective of these guidelines is to promote the convergence of classifications for consistent application of MiCAR across the EU. This in turn aims to help strengthen consumer/investor protection, ensure a level playing field and mitigate risks of regulatory arbitrage. These guidelines will be translated into official EU languages and published on the ESA websites. The guidelines will apply from three months after the publication of the translations.
Standardized testing for cryptoassets
Background and next step
The Guidelines have been developed in accordance with Article 97(1) of the Markets in Crypto-Asset Regulation (MiCAR) (Regulation (EU) 2023/1114), which requires ESAs, by December 30 2024, jointly publish guidelines in accordance with Article 16 of the ESA Founding Regulation (Regulation (EU) No 1093/2010, Regulation 1094/2010, Regulation 1095/2010) to clarify the content and form of the explanation accompanying the white paper on crypto-assets referred to in Article 8(4), and the legal opinions on the qualification of asset-referenced tokens (ART) referred to in Article 17 (1), point (b)(ii), and Article 18, paragraph 2, point (e), of MiCAR. The guidelines must include a model explanation and opinion as well as a standardized test for the classification of cryptoassets. This is ESA’s only joint political mandate under MiCAR.
MiCAR establishes regimes to regulate the issuance, public offering and admission to trading of ART, EMT and other crypto-assets. The regulation also establishes a framework for the provision of crypto-asset services.
The ART and EMT regime established by MiCAR came into force at the end of June 2024, while other parts of the regulation (issuance of other types of crypto-assets and provision of crypto-asset services) came into force at the end of June 2024. 2024.
Additional information:
Cristina Bonillo
Senior Communications Officer
press@esma.europa.eu
