Secondary legislation for the implementation

of Markets in Crypto-Assets Regulation —

where do we stand?

Diana Stetiu
3 min read

Oct 7, 2023

On 21 September 2023, the European Banking Authority (EBA) held a virtual

public hearing on the consultation paper regarding:

(i) the two sets of draft regulatory technical standards: Draft Regulatory

Technical Standards on information for application for authorisation to offer

to the public and to seek admission to trading of asset-referenced

tokens (the “Draft RTS on Information for Authorisation”) and Draft

Regulatory Technical Standards on the detailed content of information

necessary to carry out the assessment of a proposed acquisition of qualifying

holdings in issuers of asset-referenced tokens (the “Draft RTS on the

Assessment of a Proposed Acquisition”); and
(ii) the one set draft implementing technical standards: Draft

Implementing Technical Standards on standard forms, templates and

procedures for the information to be included in the application (the “Draft

ITS”),

all under Regulation (EU) 2023/1114 on markets in crypto-assets (“MiCA”).

The deadline for the submission of comments is 12 October 2023, the

consultation process having started on 12 July 2023.

Under MiCA regulation, the offer to the public or the admission to the trading

of an asset-referenced token is reserved to legal persons or other

undertakings established in the EU subject to the authorisation and approval

of the publication of a white paper.

The EBA has developed the Draft RTS on Information for Authorisation in

accordance with Article 18(7) of MiCA regulation and in close cooperation

with the European Securities and Markets Authority (ESMA) and the

European Central Bank (ECB). The Draft RTS on Information for

Authorisation sets out the information requirements to be included when

applying for such an authorisation. The information requirements cover the

business model, internal governance, including information and

communication technology risk management, liquidity, reserve of assets,

sufficiently good repute of the members of the management body and of

shareholders with qualifying holdings.

The Draft ITS has been developed by the EBA in accordance with Article
18(6) of MiCA regulation and in close cooperation with ESMA. The Draft ITS
set out the standard application letter, the application template and clarify

the process relating to the assessment of completeness of the application by

the competent authority.

As credit institutions are only required to receive approval to publish a white

paper, these pieces of future legislation do not apply to credit institutions.

Consistent with the general regime applicable in the financial sector, MiCA

regulation envisages a prudential assessment by competent authorities for

the acquisition of qualifying holdings in issuers of asset-referenced tokens

that are not credit institutions. The Draft RTS on the Assessment of a

Proposed Acquisition has been developed by EBA in accordance with Article

42(4) of MiCA regulation and in close cooperation with ESMA.

The Draft RTS on the Assessment of a Proposed Acquisition aims to clarify

the information requirements that are necessary for such an assessment.

This information covers five criteria relating to:

(a) the reputation of the proposed acquirer;

(b) the suitability of any person who will direct the target undertaking;

(c) the financial soundness of the proposed acquirer;

(d) the sound and prudent management of the target undertaking following

the acquisition; and

(e) suspicion that money laundering of terrorist financing is committed or

attempted or that it may increase following the acquisition.

MiCA regulation came into force on 29 June 2023 after a long and complex

legislative process. MiCA regulation is the world’s most comprehensive

regulatory framework of the crypto industry to date and aims to protect

investors and ensure the integrity of the crypto-asset market. The provisions

relating to asset-referenced tokens (ARTs) will be applicable from 30 June

2024.

Among the activities within the scope of MiCA regulation are the activities of

offering to the public or seeking admission to trading of asset-referenced

tokens (ARTs) and electronic money tokens (EMTs) and issuing such tokens.

Supervision tasks are conferred on the EBA for asset-referenced

tokens (ARTs) and electronic money tokens (EMTs) that are

determined by the EBA to be significant. Additionally, the EBA is

mandated to develop 17 technical standards and guidelines under

MiCA regulation to further specify the requirements for asset-

referenced tokens (ARTs) and electronic money tokens (EMTs), and

an additional 3 mandates jointly with ESMA (and, in one case, also

with EIOPA).

Key Contact:

Diana Stetiu — Attorney-at-Law & Managing Partner

E-mail: diana@web3lawyer.eu
Tel: +40 771 035 937

https://www.linkedin.com/in/diana-stetiu/