How to avoid mistakes in crypto classification? Check out the new EBA guidelines!

On December 10th, 2024 Guidelines on templates for explanations and opinions, and the standardized test for the classification of crypto-assets, under Article 97(1) of Regulation (EU) 2023/1114 were published by the three European Supervisory Authorities (EBA, EIOPA and ESMA – the ESAs).

Uniform classification of cryptocurrencies in the EU: what do the new guidelines contain?

The guidelines provide a template that specifies the format and content of the explanation accompanying the cryptoasset white paper, as referred to in Article 8(4) of MiCAR.

What is more, the document delivers a draft detailing the content and format of the legal opinion concerning the qualification of asset-referenced tokens (ARTs), as mentioned in Article 17(1)(b)(ii) and Article 18(2)(e) of MiCAR.

The guidelines provide a standardized test for classifying crypto-assets, clarifying that MiCAR applies exclusively to crypto-assets that are:

• not unique and non-fungible with other crypto-assets (Article 2(3) of MiCAR);
• not within the scope of other sectoral regulations due to their qualification as financial instruments, deposits, insurance or pension products, or other relevant financial products, as stated in Article 2(4) of MiCAR;
• not issued by entities excluded under Article 2(2) of MiCAR.

The primary objective of these Guidelines is to ensure uniformity in the classification of crypto-assets for the consistent implementation of MiCAR across the EU. This, in turn, aims to strengthen consumer and investor protection, ensure a level playing field, and reduce the risk of regulatory arbitrage.

The Guidelines will be translated into the official EU languages and made available on the ESAs’ websites. They will come into effect three months after the translations are published.

Find out who the guidelines apply to!

These Guidelines apply to:

• competent authorities as defined in Article 3(1)(35)(a) of MiCAR,
• offerors, trading platform operators or persons seeking admission to trading for crypto-assets (excluding ARTs or EMTs) who must notify the competent authority of the crypto-asset white paper with an explanation justifying its classification, as per Article 8(4) of the Regulation,
• credit institutions offering or seeking admission to trade asset-referenced tokens (ARTs) and required to submit a legal opinion on the crypto-asset’s qualification under Article 17(1)(b)(ii),
• other legal entities or undertakings (non-credit institutions) offering or seeking admission to trade ARTs and required to provide a legal opinion under Article 18(2)(e),
• persons conducting or planning to conduct crypto-asset services, who need to determine whether their activities involve crypto-assets falling within the Regulation’s scope.

Does your business meet the MiCA compliance requirements?

The guidelines contain a set of templates that will facilitate proceeding with certain MiCAR proceedings and a clear flow chart enabling execution of a standard test for classification of cryptoassets. The guidelines (only in English for now) are available HERE.

We encourage you to familiarise yourself with the new regulations, they may be crucial for your j operations. And if you need help in understanding them and implementing them correctly, please contact our law firm. We will do our best to respond to your message within 48 hours.