ESMA has published another Q&A series on the MiCA regulation. Find out if your company is compliant!
On 10 January 2025, the European Securities and Markets Authority (ESMA) published answers to questions relating to the interpretation of selected aspects of European Union legislation. The latest Q&A session focused on issues related to the following acts:
- Markets in Crypto-Assets Regulation (MiCA),
- Digital Operational Resilience Act (DORA),
- Alternative Investment Fund Managers Directive (AIFMD),
- Central Securities Depositories Regulation (CSDR),
- Regulation of OTC derivatives, central counterparties and trade repositories (EMIR).
Questions on MiCA
The concerns raised focused on the following elements:
- the need for crypto-related service providers (CASPs) to have their annual financial statements audited by an auditor for the purpose of determining the amount of funds,
- the amount of funds available and the choice of license class if the services fall under several license classes,
- attainment of cryptoasset service provider (CASP) status by individuals or trusts.
ESMA answers
In ESMA’s view, CASPs should have their annual financial statements audited to determine further the amount of own funds. Importantly, attention was drawn to an exception that may arise from the legal arrangements adopted by Member States regarding the approval of financial statements by supervisory authorities.
Regarding concerns about the selection of services covered by several licenses (affecting the determination of own funds requirements under Annex IV of the MiCA), ESMA has stated that where the scope of CASP services crosses between classes (i.e. both services falling under classes 1 and 2, 1 and 3 or 2 and 3), the higher value of the required funds should be chosen in any case.
For example: providing the service of exchanging cryptoassets into FIAT (class 2) and operating a cryptoasset trading platform (class 3) will amount to a fundraising requirement of €150,000.
Analysing the last aspect, the ESMA has clearly stated that individuals and trusts cannot apply for a CASP license as they do not qualify as “other undertakings” as described in Article 3(1)(15) of the MiCA.
More answers dedicated to MiCA in the Q&A session?
We await further answers to the questions accepted for recognition by ESMA. For example, question (No. 2293) relates to the need for obtaining a CASP license when an entity is trading crypto-assets for its own account.
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