ESAs release guidelines for crypto-asset classification under MiCAR

These guidelines establish standardised templates and procedures for assessing the regulatory classification of crypto-assets across the European Union, aiming to promote consistency and mitigate risks of regulatory divergence. 

MiCAR introduces a legal framework for the issuance and trading of crypto-assets, including asset-referenced tokens (ARTs) and electronic money tokens (EMTs), alongside requirements for crypto-asset service providers (CASPs). The regulation seeks to enhance market integrity, financial stability, and investor protection while addressing risks associated with the proliferation of ARTs and EMTs.

Main features of the guidelines

The guidelines cover three main elements:

Templates for legal and explanatory submissions 

• A standardised format for the legal opinion required for ART issuers under Articles 17(1) and 18(2) of MiCAR. 
• A template for the explanation accompanying white papers for crypto-assets that do not qualify as ARTs or EMTs, as outlined in Article 8(4). 

Standardised classification test

A detailed test for determining whether a digital asset falls within MiCAR's scope. This test involves evaluating the asset's attributes, such as fungibility, technological features, and potential overlap with existing EU financial instruments or products.

Consistency and application

The templates and test aim to align regulatory practices across Member States, reducing discrepancies in how crypto-assets are classified. The ESAs emphasise that assessments must consider relevant EU laws, national regulations, and court decisions.

Practical implications and next steps

The guidelines will become effective two months after their publication in all official EU languages. Market participants, including issuers, trading platform operators, and legal advisors, are expected to use the templates to ensure comprehensive and transparent submissions to regulators. Competent authorities must integrate these practices to align with MiCAR’s requirements. 

The ESAs acknowledge feedback received during public consultations, which led to refinements in the templates and classification test. Key updates include clarifications on hybrid and non-fungible tokens and adjustments to address proportionality concerns in regulatory assessments.