Markets in crypto-assets regulation (MiCA): The scope is in the details

Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets (“MiCA”) entered into force on 29 June 2023. Since then, the European Supervisory Authorities (“ESAs”) have published several draft level 2 and 3 measures.

During the summer, the ESAs published a consultation paper on draft guidelines on templates for explanations and opinion, and the standardised test for the classification of crypto-assets. This consultation paper follows another one published in the beginning of the year by the European Securities and Markets Authority (“ESMA”) on the draft guidelines on the conditions and criteria for the qualification of crypto-assets as financial instruments.

The draft guidelines support the regulatory qualification of crypto-assets regarding both what constitutes a crypto-asset under MiCA and the categorisation of such crypto-assets into the three types of crypto-assets under MiCA (being asset-referenced tokens (“ARTs”), electronic money tokens (“EMTs”) and crypto-assets other than ARTs or EMTs).

The input provided in the guidelines and, in particular, the standardised test provided therein will have a key impact on the scope and practical application of MiCA. Stakeholders have until 12 October to provide their input.