On 20 June 2023, the Regulation (EU) of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets (MiCA), the first and globally unique comprehensive regulation of the crypto-asset market, entered into force to provide a transparent, uniform and secure legal framework for all crypto-asset industry entities in the European Union, including issuers, service providers and investors, in particular establishing a basic protection for the people investing in crypto-assets.
The new regulation differentiates between the following three categories of crypto-assets (tokens): asset-referenced tokens (ARTs), e-money tokens (EMTs) and utility tokens. As a general rule, non-fungible tokens (NFTs) and tokens that are financial instruments will remain outside the scope of the regulation.
Who is affected by MiCA?
Issuers of crypto-assets
MiCA Regulation regulates in detail the rules of tokens admission to trading by the issuers, who generally will be required to obtain authorisation to offer to the public and to the admission to trading of crypto-assets, by applying to the competent authority of their home Member State. The issuers will be also required to be established in the European Union. As a part of the procedure, issuers will be required, among other obligations, to publish a white paper document, detailing the token, the tokenomics, the rights and obligations associated with the token and the associated risks. MiCA also introduces detailed guidelines for marketing materials for public offerings of crypto-assets, similar to the rules on advertising of financial instruments. The specific scope of obligations depends on the type of tokens issued, with the most stringent rules set up for tokens that are electronic money (EMT). In this case, only a credit institutions or an electronic money institutions will be able to obtain authorisation and to become EMT issuers.
Crypto-asset service providers
The regulation will also cover crypto-asset service providers (CASPs), including entities such as cryptocurrency exchanges, cryptocurrency brokers, cryptocurrency wallets, personalised advisory service providers. MiCA defines crypto-asset service as: providing custody and administration of crypto-assets on behalf of clients, operation of a trading platform for crypto-assets, exchange of crypto-assets for funds or for other crypto-assets, execution and transmission of orders for crypto-assets on behalf of clients, placing of crypto-assets, providing advice on crypto-assets, providing portfolio management on crypto-assets, providing transfer services for crypto-assets on behalf of clients.
Such entities will be required, especially, to obtain authorisation to operate as a crypto-asset service providers within the European Union, by applying to the competent authority of their home Member State. What is more, CASPs will be also required to be established in the European Union as well as to hold prudential safeguards – a policy or reserve of between €50,000 and €150,000, depending on the scope of provided services.
Investors
Finally, MiCA is also intended to provide some basic protection for investors, particularly vulnerable to fraudulent activities in the crypto-asset market. Holders of tokens that are electronic money (EMT) will be provided with a claim against the issuer of the e-money tokens at any time to redeem such tokens, by paying in funds, other than electronic money, the monetary value of the e-money token held to the holder of the e-money token. Holders of such tokens will also have a claim for damages against the issuer and members of its administrative, management or supervisory body in the event that the above mentioned white paper document contains information that is not complete, fair or clear, or that is misleading, for any loss incurred due to that infringement.
A claim for redemption will also be available, under certain conditions, to the holders of asset-referenced tokens (ARTs), either by paying an amount in funds, other than electronic money, equivalent to the market value of the assets referenced by the asset-referenced tokens, or by delivering the assets referenced by the tokens. In addition, issuers of such tokens will be required to establish and maintain a reserve of assets, in an amount at least equal to the aggregate value of claims that holders of asset-referenced tokens have against the issuer, which will be legally segregated and free from non-redemption claims.
When will MiCA become effective?
The provisions of MiCA for the issuance of e-money tokens (EMTs) and asset-referenced tokens (ARTs) are set to begin application by 30 June 2024, while in full MiCA will apply from 30 December 2024. It is expected that assumptions or drafts of national and EU legislation will be published in the next months, developing the provisions included in MiCA. Due to the extensive scope of the regulation, it is worth taking the appropriate steps to implement MiCA into your business in advance.