MiCAR

is a uniform set of rules for tokens in sight?

MiCAR

In September 2020, the European Commission published a draft regulation entitled ‘On Markets in Crypto-Assets’ (‘MiCAR’), which provides for pan-European regulation of issuances of stablecoins and utility tokens and the provision of crypto-related services. The MiCAR is expected to come into force at the end of 2022.  

MiCAR standardises three different types of tokens and, depending on their classification, sometimes attaches highly extensive legal consequences 

for the issuer to them. The token types covered by MiCAR are asset-referenced tokens (‘ARTs’), e-money tokens (‘EMTs’) and utility tokens (‘UTs’). ARTs and EMTs are tokens that refer to a stable value, known as ‘stablecoins’. ARTs relate to commodities, goods or other crypto values (e.g. gold, oil), whereas EMTs are always based on a currency in the sense of legal tender (e.g. EUR). Utility tokens, which provide the token holder with a good or service when they are redeemed, must be distinguished from these stablecoins, representing a type of voucher token. 

These three token types share the common requirement that the MiCAR issuers of a public offering are each obliged to publish a white paper. This white paper includes general information about the issuer, the project, the rights and obligations associated with the tokens, the underlying technology and the risks associated with an investment in the tokens in question. By extension, a white paper serves to protect both investors and consumers, while also potentially justifying the issuer’s liability vis-à-vis the investor at hand, thereby fulfilling a similar purpose to a capital market prospectus. 

If the issuer is obliged to publish one of these white papers, it must first be approved by the local supervisory authority, the FMA in Austria. As a result, the supervisory authority can also deny the issuer approval and thereby prevent the issue from taking place altogether. If an ART or EMT has particular EU-wide relevance (measured against defined threshold values), it is to be classified as ‘significant’. When this classification is awarded, this shifts responsibility for the ongoing supervision of the issuer from the local supervisory authority to the European Banking Authority (‘EBA’). Consequently, MiCAR creates uniform supervision at EU level for these significant crypto assets. 

In addition to these obligations incumbent upon issuers, MiCAR also standardises a licensing requirement, as well as special requirements and due diligence obligations for the professional and commercial offering of services in connection with crypto assets. 

Offering crypto services is understood to mean, for example, the safekeeping and administration of crypto assets, the operation of a trading platform for crypto assets or the exchange of crypto assets with fiat money or other crypto assets. This regulation is also intended to create and guarantee legal certainty and a minimum level of protection for investors and consumers alike. 

Security tokens, on the other hand, are not covered by MiCAR. As a result, the existing capital market law regime continues to apply to these security-like tokens, although this regime was not designed for tokens. A tailor-made set of rules for this type of token would be desirable and should take their unique aspects into account in an appropriate manner, as a result regulating them in a nuanced fashion. 

In summary, the draft MiCAR appears to be suitable for use as a unified legal regulation to counteract the prevailing possibilities of abuse that arise in the absence of specific regulations and to create framework conditions for a competitive market shaped by legal certainty and consumer protection.


AUTHORS:

Mag. Ronald Frankl, Attorney-at-Law and Managing Partner at LANSKY, GANZGER + partner
Mag. Peter Virtbauer, Associate at LANSKY, GANZGER + partner

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