ESMA has updated its question set around the introduction of regulated crypto assets and trading under MiCA, the Markets in Crypto-Assets Regulation that came into force at the end of December 2024.
In its latest missive, the regulator outlines questions to ask regarding:
- How to distinguish between different execution services (2653)
- Offerors and CASPs’ responsibilities with regards to white papers for Title II tokens admitted to trading prior to 30 December 2024 (2654)
On the first issue, ESMA notes that NCAs (National Competent Authorities) should not rely solely on information from regulated entities themselves: “It is important to assess whether the services for which a crypto-asset service provider (CASP) requests authorisation under MiCA, match the operational reality of their activities. In such assessment, NCAs should not rely solely on the qualification provided by the CASP, or the terms used by the CASP in the contractual or marketing documentation. Instead, special attention should be paid to the order fulfilment flow, including if the CASP acts in any or several of the following capacities: a counterparty to the client, an agent concluding agreements on behalf of the client or routing their orders to third parties who in turn will conclude agreements on behalf of clients.”
On the second, technical query, ESMA notes: “For Title II crypto-assets admitted to trading prior to 30 December 2024, offerors and persons seeking admission to trading must therefore only comply with marketing rules. There is no white paper requirement.”
“Operators of trading platforms must, by 31 December 2027, ensure there is a white paper. In line with Article 66(3) of MiCA, they must also publish hyperlinks to any existing (registered) white papers. Finally, the other CASPs referenced in Article 66(3) must only publish hyperlinks to any existing (registered) white papers. Where there are no such white papers, they do not have the responsibility to ensure they are produced.”
Transition period
There is an ongoing transition period through to 1 July 2026. ESMA notes on this that:
“Member States will have the option of implementing ‘transitional measures’ (Article 143 of MiCA) that would allow entities or undertakings already providing crypto-asset services under applicable law in their jurisdictions to continue doing so during the transitional phase of MiCA (i.e., the period of 18-months after full application in December 2024). These transitional measures include:
- A ‘grand-fathering’ clause Art. 143 (3) – allowing entities providing crypto-asset services in accordance with national applicable laws before 30 December 2024 to continue to do so until 1 July 2026 or until they are granted or refused a MiCA authorisation.
- A simplified authorisation procedure Art. 143 (6) – for entities that were already authorised under national applicable law on 30 December 2024 to provide crypto-asset services.
