Edited by Fabrizio Cascinelli, Mario Zanin, Francesco Della Scala
On March 25, 2024, the European Securities and Markets Authority (ESMA) published two documents under the so-called Market in Crypto-Assets Regulation (MiCA Regulation) i.e. Regulation (EU) 2023/1114 of the European Parliament and of the Council of May 31, 2023, and published in the Official Journal of the European Union on June 9, 2023.
The MiCA Regulation, it’s useful to remember, is intended to address the segmentation of the European legal framework applicable to crypto-assets by defining an harmonized European framework for admission to trading as well as for related crypto-asset service providers.
With reference to timing, the MiCA Regulation will be applicable in its entirety starting from 30 December 2024; however, the requirements for asset-referenced tokens and e-money tokens will be applicable starting from 30 June 2024.
For the full implementation and applicability of the rules set out by MiCA, EBA and ESMA are required to develop (in certain cases jointly) Regulatory Technical Standards (RTS), Implementing Technical Standards (ITS) and guidelines. Considering the number of technical standards to be developed, ESMA has, at the time, announced that the works will be sub-divided into three separate consultation packages.
The first consultation of ESMA (Consultation Package 1) – covering 5 sets of RTS and 2 sets of ITS related to Crypto-Asset Service Providers (so-called CASPs) – was held between July and September 2023.
Subsequently, between October and December 2023, ESMA put out for consultation the second set of technical standards (Consultation Package 2) covering 6 sets of RTS and 2 sets of ITS.
With respect to Consultation Package 1, ESMA has published, on March 25, 2024, the final drafts, that concerns:
- information that certain financial entities must disclose to the relevant national authorities about their intention to provide cryptocurrency services (RTS ex art. 60(13), MICAR);
- the standard formats, templates and procedures for the notification referred to in the previous point (ITS ex art. 60(14), MICAR);
- the content of the application for authorization as a service provider for cryptocurrencies (RTS ex art. 62, par. 5, MICAR);
- formats, templates, and standard procedures for the information to be included in the application for authorization as a service provider for cryptocurrencies (ITS ex art. 62(6), MICAR);
- the requirements, templates and procedures for the handling of complaints by cryptocurrency service providers (RTS ex art. 71(5), MICAR);
- the requirements of information on plans to acquire a qualified interest in a cryptocurrency asset service provider (RTS ex art. 84(4), MICAR).
The draft technical standards are submitted to the European Commission for adoption; the European Commission shall decide whether to adopt the technical standards within 3 months.
The final draft regarding requirements for policies and procedures on the management, prevention and disclosure of conflicts of interest by service providers for cryptocurrencies (RTS ex art. 72(5), MICAR) will be published at a later stage to allow the European Banking Authority (EBA) to conclude its consultation process and thus allow ESMA and the EBA to cooperate closely and ensure maximum alignment.
The second consultation of ESMA (Consultation Package 2) – covering 6 sets of RTS and 2 sets of ITS – was held between October and December 2023.
New documents put out for consultation on 25 March 2024 (by 25 June 2024) are part of the so-called “Consultation Package 3” which includes remaining mandates planned by MICAR; they are, specifically, 1 set of RTS and 3 sets of Guidelines concerning:
- detection and reporting of suspected market abuse in crypto-assets (RTS ex art. 92(2), MICAR);
- policies and procedures, including the rights of clients, for crypto-asset transfer services (Guidelines ex art. 82(2), MICAR);
- suitability requirements for certain crypto-asset services and format of the periodic statement for portfolio management (Guidelines ex art. 81(15), MICAR);
- ICT operational resilience for certain entities under MiCA (Guidelines ex art. 14(1)(d), MICAR).
Finally, it is recalled that on 29 January 2024, ESMA put out for consultation (by 29 April 2024) two additional sets of Guidelines falling within the scope of “Consultation Package 3” related, respectively, to the so called “reverse solicitation” and the qualification of crypto-assets as financial instruments.
Download the Final Report (PDF, 814kb) on Draft technical Standards specifying certain requirements of the Markets in Crypto Assets Regulation (MiCA) – first package
Download the Consultation Paper (PDF, 621kb) on the Technical Standards specifying certain requirements of MiCA (3rd package)