New guidelines on crypto-asset classifications under MiCA

Regulation (EU) No 2023/1114 on Markets in Crypto Assets (MiCA) entered into force and began to apply partially in the EU on 30 June this year, with full application starting on 30 December 2024. 

MiCA will regulate the offering and trading of various assets, including crypto-assets, asset-referenced tokens (ARTs), e-money tokens (EMTs) to the public, as well as the activities of providers of crypto-asset services (CASPs) in the EU. 

The objectives of MiCA are, inter alia, to harmonize the legal framework applicable to entities engaging in any of the abovementioned activities, to ensure the proper functioning of markets in crypto-assets and to guarantee a high consumer protection for consumers and investors. 

Given the continuous growth that the global markets has seen pertaining to both investment initiatives in various ARTs (such as stablecoins) as well as the use of crypto-assets as way of payments, the framework plays a crucial role in addressing the risks associated with the increased use of ARTs and EMTs. These risks include potential impacts on financial stability, the smooth operation of payment systems, the transmission of monetary policy, and the preservation of national monetary sovereignty. To accomplish this, MiCA introduces a comprehensive set of regulatory requirements, including authorisation, conduct Guidelines, and prudential standards for issuers of ARTs and EMTs, as well as for CASPs.

If, and to what extent MiCA applies to market participants, primarily depends on how the relevant crypto-asset is classified under the regulation. Therefore, it is crucial for the market to establish a unified approach when classifying crypto-assets and to ensure that any explanations provided for regulatory purposes are consistent. This includes clarifying which specific Title under MiCA, and subsequently, which provisions are applicable for each such entity or person.  

For example, MiCA requires credit institutions intending to offer an ART to the public or apply for trading of an ART to submit a legal opinion to the competent authority (e.g., the Swedish Finansinspektionen or the Norwegian or Danish Finanstilsynet). This legal opinion must explain how the relevant token meets the criteria for classification under a specific asset category in accordance with MiCA. 

A similar requirement is outlined for offerors or trading entities of crypto-assets, requiring them to include a clarification statement as a supplement to the white paper, which is required as part of the authorization process.

To further support a harmonized and consistent application of these requirements across member states, the ESAs have now issued draft Guidelines on how these classifications should be carried out. The Guidelines provide templates that outline the content and format of the legal opinion and the explanations for crypto-assets mentioned above.

Additionally, to help market participants follow the same method when classifying crypto-assets under the regulation, the Guidelines also contain a standardized test in form of a flow-chart, which will enable for both regulators and market participants to understand and comply with the rules. 

The latest adopted and consolidated version of MiCA. 

The standardized test can be found in Annex C to the Guidelines.

The Norwegian Finanstilsynet has published an informative statement encouraging Norwegian market participants to reach out should they have any specific concerns or interests related to the Guidelines. 

If you have any questions relating to the national adoption of the Guidelines or MiCA in general, in Denmark, Norway or Sweden, we are here to assist. 

Our dedicated team of financial regulatory lawyers is at the forefront of the legal fintech and Paytech environment and provides top-tier legal advice to the industry on a cross-border pan Scandinavian level, whilst always keeping the client’s business in focus.