New ESMA guidelines – check when crypto assets can be considered financial instruments

On 19 March 2025, the European Securities and Markets Authority (ESMA) published guidelines setting out the conditions under which crypto-assets can be classified as financial instruments under EU law. The document implements Article 2(5) of the MiCA Regulation and will come into force on 18 May 2025. The guidelines aim to ensure consistent interpretation of the rules across Member States and to clarify the boundary between MiCA and MiFID II regulations.

Purpose and Structure of the Document

The guidelines seek to unify the approach to classifying crypto-assets based on:

• the principle of technological neutrality,
• criteria for main categories of financial instruments,
• treatment of hybrid tokens and borderline cases.

The document is divided into a general section, detailed qualification procedures, and interpretations of specific token types, including practical examples.

Technological Neutrality

ESMA clearly states that the technology used for issuance – such as DLT – does not affect classification. Tokenized financial instruments remain regulated equivalent to their traditional counterparts as long as their legal substance is preserved. For example, tokenized shares continue to be regarded as securities.

Crypto-Assets as Transferable Securities

To qualify as a transferable security (pursuant to Article 4(1)(44) MiFID II), a crypto-asset must meet three conditions:

1. Absence of a payment function – assets primarily used as means of exchange (e.g., stablecoins) are excluded.
2. Belonging to a class of securities – the tokens must be homogenous, fungible, and grant identical rights (e.g., dividend or voting rights).
3. Transferability on the capital market – potential ability to transfer suffices. Time-based restrictions (lock-up periods) do not exclude classification if final trading is possible.

Other Financial Instruments

ESMA’s guidelines also cover:

• Money market instruments – short-term assets (up to 397 days), e.g., tokenized treasury bills and certificates of deposit.
• Units in collective investment undertakings – requiring pooled capital, investment strategy, and shared return objective.
• Derivatives – tokens linked to future events or underlying assets, with special emphasis on perpetual futures contracts.
• Emission allowances – must comply with the EU ETS system; voluntary carbon units are excluded.

NFTs and Hybrid Tokens

NFTs are excluded from MiCA only if unique and indivisible. Fractionalization results in regulatory coverage.

Hybrid tokens are classified based on their predominant function – if investment characteristics prevail, they are financial instruments regardless of issuer labels.

Supervision and Market Obligations

National authorities must implement the guidelines by 18 July 2025 and notify ESMA of their compliance intentions.

Issuers are expected to document regulatory assessments in white papers, including legal opinions for asset-referenced tokens.

Important changes

ESMA’s guidelines mark a significant step toward uniform classification of crypto-assets in the EU. Clear demarcation between MiCA and MiFID II requires active legal involvement from token design onwards. The dynamic market evolution calls for close cooperation with supervisory bodies and continuous monitoring of interpretive practices across jurisdictions.

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