Preparing for Markets in Crypto-Assets Regulation (MiCA)

The Markets in Crypto-Assets Regulation (MiCA) institutes uniform regulations for crypto-assets across the EU not currently regulated by existing financial services legislation. The first Consultation Package regarding the regulation was published on 12 July. The consultation paper requests feedback on rules for crypto-asset service providers regarding authorisation, identification, management of conflicts of interests, and complaints by 20 September.

Timeline

 MiCA is expected to come into force in 2024. Key milestones include:

20 April 2023  - EU Parliament approval

Read how Europe and the UK are at the forefront of Crypto Regulation

Background

"The Commission is of the view that, where crypto-assets are not covered by EU financial regulation, the absence of applicable rules to services related to such assets leaves consumers and investors exposed to substantial risks. In addition, the fact that some Member States have put in place bespoke rules at national level for crypto-assets that fall outside current EU regulation, leads to regulatory fragmentation, which distorts competition in the Single Market, makes it more difficult for crypto-asset service providers to scale up their activities cross-border and gives rise to regulatory arbitrage. Lastly, the crypto asset subset of 'stablecoins' can raise additional challenges if it becomes widely adopted by consumers."

—Europe Fit for the Digital Age, European Parliament Legislative Train 06.2023

According to Mark Browne, Partner at Clerkin Lynch LLP, MiCA came about because of the lack of legislative clarity in the EU market. Do tokens fall under existing legislation including MiFID, the Electronic Money Directive, or the Payment Services Directive? It's subject to interpretation and very unclear.

The potential for conflicting regulations at the national level confused the situation even further.  The lack of clear and specific regulation resulted in diminished consumer protection and could discourage regulated businesses from pursuing opportunities in the region. 

Scope

"Any legislative act adopted in the field of crypto-assets should be specific and future-proof, be able to keep pace with innovation and technological developments and be founded on an incentive-based approach. The terms ‘crypto-assets’ and ‘distributed ledger technology’ should therefore be defined as widely as possible to capture all types of crypto-assets that currently fall outside the scope of Union legislative acts on financial services."

—Regulation (EU) 2023/1114 on markets in crypto-assets

MiCA will implement a cohesive legislative framework for Crypto-Assets that applies to all relevant issuers and service providers within the EU. Mark notes that there are two competing imperatives with the legislation. The legislation must be broad enough to be able to adapt to change as the industry develops and at the same time specific enough to ensure regulatory and legal certainty. 

The MiCA legislation classifies regulated crypto-assets into three categories which should be distinguished from one another and subject to different requirements depending on the risks they entail:

• Electronic Money Tokens (e-Money Tokens) are crypto-assets that purport to maintain a stable value by referencing the value of one official currency.
• Asset Referenced Tokens are crypto-assets that are not electronic money tokens and that purport to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies.
• Utility Tokens are crypto-assets that are only intended to provide a good or a service supplied by its issuer.

Of equal note is what is not covered under MiCA. As outlined in Article 2 of the legislation, there's a long list that's outside the parameters of MiCA, including Non-Fungible Tokens (NFTs), Central Bank Digital Currencies, Financial instruments as defined under MiFDII, the European Investment Bank and its subsidiaries, deposits, including structured deposits, and funds, except if they qualify as e-money tokens.

Mark thinks that there is still potential for confusion and overlap between what is covered under MiCA and what is not, and expects that additional guidance will be forthcoming .

Taxonomy

"Crypto-asset means a digital representation of a value or of a right that is able to be transferred and stored electronically using distributed ledger technology or similar technology.”​

—Regulation (EU) 2023/1114 on markets in crypto-assets

The MiCA regulation is broad and contains many defined terms that are cross-referenced throughout the legislation. According to Mark, the place to start in understanding the legislation is with the taxonomy of terms contained in the document.  These are terms that not all in the financial services or legal world might not be familiar with, or given the lack of clarity around crypto-assets, there might not have been a shared understanding across the industry about what they mean.

Mark divides the definitions into 5 categories: Token definitions, technology definitions, participant definitions, activity definitions and legal definitions.  A full list of the definitions applied for the purposes of the legislation can be found in Article 3 of the MiCA legislation.  And for an explanation of key terms, watch the on-demand webinar Markets in Crypto-Assets (MiCA) Regulation Explained. 

Key Provisions

The MiCA legislation contains key provisions for those issuing and trading crypto-assets (including asset-reference tokens and e-money tokens) covering transparency, disclosure, authorisation and supervision of transactions.

The legislation regulates tokens and Crypto-Asset Service Providers (CASPs). It requires that both issuers of Crypto-Assets and CASPS must implement Consumer Protection safeguards including prudent governance and risk management policies, disclosure of potential conflicts of interest and acting in the best interest of the client. Safeguards to prevent Market Abuse including market manipulation, insider trading and wash trading along with ESG disclosures are required as well. 

Read our white paper on Market Abuse in the Digital Age

Article 111 of the MiCA legislation outlines the potential penalties for infringement and failure to comply with the provisions, including fines, public statements, cease and desist orders, personnel bans and suspension.

Consultation Package 1

During the implementation phase of MiCA, ESMA  is seeking public feedback on technical standards via three consultation packages. Consultation Package 1 was released 12 July 2023, seeking opinions regarding authorisation, identification, management of conflicts of interest and complaints. In particular, ESMA invites crypto-assets issuers, crypto-asset service providers and financial entities dealing with crypto-assets to provide comments by 20 September.

In addition, ESMA aims to gather insight on respondents’ current and planned activities regarding expected turnover, the number of white papers they plan to publish and the use of on-chain vs off-chain trading. The input to this part of the consultation will remain confidential and will serve to calibrate proposals to be included in the second and third consultation packages. 

In the release, ESMA Chair Verena Ross also reminded consumers that regulation or not, crypto investments still carry risk, noting "We also want to remind consumers that, even with the implementation of MiCA, there will be no such thing as a safe crypto-asset.”

We can help you be ready for the many provisions of MiCA. To meet with our team to see how MCO is helping firms manage conflicts of interest and prepare for crypto-asset compliance, click here to set up some time for a demo.