The MiCAR guidelines regulate the offering and admission to trading of asset-referenced tokens and e-money tokens in the European Union. They establish templates for explanations accompanying crypto-asset white papers and for legal opinions on the qualification of tokens. A standardized test for the classification of crypto-assets is also proposed, considering EU laws and relevant judicial decisions.
This document is a final report published by the European Banking Authority (EBA) in December 2024, entitled “Guidelines on templates for explanations and opinions, and the standardised test for the classification of crypto-assets” (p. 1). It is a 48-page guide (only the first 44 pages were provided) developed under Article 97(1) of Regulation (EU) 2023/1114, known as MiCAR, which regulates crypto-asset markets in the European Union. The scope covers the regulatory classification of crypto-assets, notably asset-referenced tokens (ARTs), electronic money tokens (EMTs) and other types of crypto-assets, as well as templates for explanations and legal opinions to be provided to competent authorities. The guide is addressed to competent authorities, issuers, crypto-asset service providers (CASPs), financial institutions and other actors involved in the public offering or admission to trading of crypto-assets in the EU. The application period is set from two months after the official publication in all EU languages (p. 3, 11).
The guide aims to harmonize the regulatory classification of crypto-assets in the European Union in accordance with MiCAR, to ensure consistency, transparency and protection of investors and consumers (p. 3-4). It establishes:
- a template for the explanation accompanying the white paper of crypto-assets other than ARTs and EMTs (Article 8(4) MiCAR);
- a template for the legal opinion on the qualification of ARTs (Articles 17(1)(b)(ii) and 18(2)(e) MiCAR);
- a standardised test for the classification of crypto-assets, taking into account the exclusions provided by MiCAR (non-fungible unique crypto-assets, regulated financial products, excluded issuers).
This standardised test requires a case-by-case assessment, integrating European and national law, the case law of the Court of Justice of the EU, national decisions and local regulatory measures (p. 3, 6-7). The templates require a complete and clear justification of the classification, with references to relevant legal sources, case law and guides, and must be fully completed (p. 6-7, 14-15). The legal opinion must be issued by an impartial and competent internal or external legal advisor (p. 15).
The implementation of these guidelines will avoid divergences in interpretation between Member States, reduce risks of regulatory arbitrage and improve the quality of information provided to competent authorities (p. 31-35). Authorities must notify their compliance within two months of publication (p. 10). The guide is the result of a public consultation that received 24 responses, 22 of which were published, leading to adjustments notably on the proportionality of explanations and the inclusion of an executive summary in the templates (p. 36-44).
MiCAR, which came into force on 29 June 2023, will apply from 30 December 2024 (30 June 2024 for certain securities concerning ARTs and EMTs) and aims to harmonize crypto-asset regulation in the EU, ensuring financial stability, market integrity and consumer protection (p. 4). To guarantee consistent application of MiCAR, it is essential to adopt a common approach for the regulatory classification of crypto-assets and for explanations provided to competent authorities (p. 4-5).
Article 97(1) of MiCAR requires European authorities to publish guidelines defining templates for explanations and legal opinions as well as a standardised classification test. These tools must allow a comprehensive and uniform assessment of crypto-assets, taking into account national and European specificities, as well as the exclusions provided by MiCAR (p. 5-7).
The document thus addresses the issue of diversity in national approaches and the complexity of crypto-assets, aiming to ensure a harmonized and transparent application of the regulatory framework, while respecting the need for case-by-case analysis (p. 6-7).
1. Regulatory framework and scope of MiCAR:
- MiCAR regulates ARTs, EMTs, other crypto-assets and associated service providers, with authorization, conduct and prudential requirements (p. 3-4).
- Application depends on the regulatory classification of the crypto-asset, which determines the applicable regime (Titles II, III, IV and V) (p. 7).
2. Templates for explanations and legal opinions:
- Two distinct templates are provided: one for the explanation accompanying the white paper of crypto-assets excluding ARTs/EMTs (Annex A), one for the legal opinion on ARTs (Annex B) (p. 14-15, 19-28).
- The templates require full completion of fields, including references to European and national laws, case law, regulatory measures, and interpretative guides (p. 14-15).
- The legal opinion must be issued by an impartial legal advisor, internal or external, justifying their qualifications and absence of unmanaged conflicts of interest (p. 15).
- The templates have been adjusted to include an executive summary and a section for additional information, allowing proportional flexibility according to the complexity of the crypto-asset (p. 38-44).
3. Standardised classification test:
- A test in the form of a flow chart (Annex C) guides the case-by-case assessment of crypto-assets according to their attributes (digital representation of value or right, transferability via DLT, MiCAR exclusions) (p. 17-19, 29-30).
- The test specifies that crypto-assets must be assessed taking into account exclusions: excluded issuers, unique non-fungible crypto-assets, financial or insurance products regulated under other frameworks (p. 16-18).
- Classification distinguishes EMTs (stable value referenced to a single official currency), ARTs (stable value referenced to other values or rights) and other crypto-assets (p. 18).
4. Compliance and reporting obligations:
- Competent authorities must integrate these guidelines into their practices and notify their compliance within two months of publication (p. 10).
- Market participants are not required to notify their compliance (p. 10).
5. Cost-benefit analysis and public consultation:
- Harmonisation of templates and the standardised test reduces divergences, facilitates understanding and limits ad hoc information requests, benefiting authorities and actors (p. 31-35).
- The public consultation received 24 responses, with requests for clarifications on definitions, proportionality of explanations, treatment of hybrid tokens, and suggestions for improvements of templates and the test (p. 36-44).
- The ESAs incorporated several adjustments, notably on explanation flexibility, addition of an executive summary, and consideration of transitional provisions (p. 38-44).
Established facts:
- MiCAR imposes a precise regulatory classification of crypto-assets, with obligations for explanations and legal opinions depending on the type of crypto-asset (p. 3-5).
- The templates provided by the ESAs are detailed and require full justification, including legal references, case law and interpretative guides (p. 14-15, 19-28).
- The standardised test guides case-by-case assessment, taking into account exclusions and technical characteristics of crypto-assets (p. 17-19).
Hypotheses:
- Consistent application of templates and the test will promote regulatory harmonisation and limit risks of arbitrage (p. 31-35).
- Flexibility of templates allows adapting the depth of explanations to the complexity of the crypto-asset (p. 38-44).
Interpretations:
- The ESAs consider that classification must focus on the asset itself, regardless of the activity of the persons involved (p. 6).
- Taking into account national specificities, notably in case law and regulation, is essential for a comprehensive assessment (p. 6-7).
Uncertainties:
- The rapid evolution of the crypto-asset market and associated technologies may require regular updates of the guidelines (p. 38).
- Some key concepts (e.g. “value”, “right”, “fungibility”) are not exhaustively defined in MiCAR, which may generate divergent interpretations (p. 36-38).
- Classification of hybrid or evolving tokens remains complex and must be addressed case by case (p. 37-38).
The ESAs conclude that adopting the templates for explanations and legal opinions as well as the standardised test is essential to ensure consistent and harmonised application of MiCAR in the European Union (p. 31-35).
They recommend:
- Mandatory use of the provided templates for explanations and opinions, fully completed and accompanied by relevant legal and case law references (p. 14-15).
- Rigorous application of the standardised test for crypto-asset classification, taking into account exclusions and technical characteristics (p. 17-19).
- Notification by competent authorities of their compliance with these guidelines within two months of their publication (p. 10).
- Proportional flexibility in the depth of explanations according to the complexity of the crypto-asset, with the possibility of annexes and additional information (p. 38-44).
- Regular updating of the guidelines to follow market developments and regulatory practices (p. 38).
These measures aim to guarantee transparency, investor protection, financial stability and market integrity of crypto-assets in the EU.
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