MiCA: Challenges of Implementation

  • 22. marca 2023

March 8, 2023
12:00 – 14:00

EVENT REPORT

Speakers

  • Ondřej Kovařík, Member of the European Parliament, ECON Committee
  • Rok Žvelc, Legal Office, DG FISMA, European Commission
  • Clément Luzeau, Policy Officer, ESMA
  • Marianne Jarlaud, Senior Policy Officer, Autorité des marchés financiers
  • Klas Malmén, Coordinator for the Innovation Centre, Finansinspektionen
    Chaired by: Maria Staszkiewicz

Summary

  • Rok Žvelc summarized the level 2 and level 3 acts that the European Commission, EBA and ESMA are to adopt in the coming 18 months after the publication of MiCA in the Official Journal. They were further discussed by Clément Luzeau and Marianne Jarlaud. These acts include:
  • Delegated acts to be adopted by the EC will specify:
    • criteria for classification of asset-referenced tokens (ARTs) and e-money tokens (EMTs) as significant by EBA
    • content and format of the information to be provided by the competent authorities to the EBA and central banks
    • type of fees that EBA is empowered to impose on the issuers of significant ARTs and EMTs in accordance with MiCA, the matters for which fees are due, the amount of the fees, the manner in which they are to be paid and the methodology to calculate the maximum amount per entity that can be charged by the EBA.
  • Regulatory technical standards (developed by the EBA and ESMA, adopted by the EC) on:
    • procedure for approving crypto-asset white papers produced by credit institutions when issuing asset-referenced tokens,
    • the information to be provided in an application for authorisation as an issuer of asset-referenced tokens,
    • the methodology for the calculation of capital requirements for issuers of asset-referenced tokens,
    • governance arrangements for issuers of asset-referenced tokens,
    • the information necessary for the assessment of a qualifying holdings in an asset-referenced token issuer’s capital,
    • the procedure of conflicts of interest established by issuers of asset-referenced tokens,
    • the type of assets which the issuers of asset-referenced token can invest in,
    • the obligations imposed on crypto-asset service providers ensuring the liquidity of asset-referenced tokens,
    • the complaint handling procedure for issuers of asset-referenced tokens,
    • the pre-trade and post-trade transparency requirements on trading platforms,
    • the functioning of the college of supervisors for issuers of significant asset-referenced tokens and issuers of significant e-money tokens,
    • the information necessary for the assessment of qualifying holdings in the crypto-asset service provider’s capital,
    • the exchange of information between competent authorities, the EBA and ESMA, and the cooperation between the competent authorities and third countries.
  • Implementing technical standards (developed by the EBA and ESMA, adopted by the EC) on:
    • machine readable formats for crypto-asset white papers,
    • the standard forms, templates and procedures for the application for authorisation as an issuer of asset-referenced tokens,
    • the standard forms and template for the exchange of information between competent authorities and between competent authorities, the EBA and ESMA.
  • Guidelines on:
    • Criteria and conditions for the qualification of crypto-assets as financial instruments (ESMA), including cases in which crypto-assets that are otherwise considered to be unique and not fungible with other crypto-assets might be qualified as financial instruments
    • Systems and security protocols (ESMA with EBA)
    • When services associated to the transfer of e-money tokens are payment service as defined in Directive (EU) 2015/2366 (PSD2)
    • The assessment of the suitability of the members of the management body of issuers of ARTs and of the natural or legal persons that have qualifying holdings in issuers of ARTs (EBA and ESMA)
    • Specifying the minimum content of the governance arrangements on monitoring tools for the risks, the internal control mechanism, the business continuity plan and the audits (EBA, ESMA and ECB)
    • establishing the common reference parameters of the stress test scenarios (EBA, ESMA and ECB)
    • The format of the recovery plan and the information to be contained in the recovery plan (EBA and ESMA)
    • Content of and triggers for the operational plan to support an orderly redemption of each asset-referenced tokens (EBA)
    • Specify when a third country firm is deemed to solicit clients established or situated in the Union (ESMA)
    • Supervision practices to detect and prevent circumventions of MiCA requirement for third country companies soliciting clients established or situated in the Union (ESMA)
    • The assessment of the suitability of the members of the management body of the crypto-asset service provider and of the natural or legal persons that have qualifying holdings in the crypto-asset service provider (EBA and ESMA)
    • The information on client or potential client’s knowledge of, and experience in investing, criteria for the assessment of knowledge and experience of natural persons giving advice or information about CASPS, and the formats of the periodic statement (ESMA)
    • Procedures and policies, including clients’ rights, for crypto-asset service providers in the context of crypto asset transfer services (ESMA)
    • Supervisory practices among NCA to detect and prevent market abuse cases
    • Specify the content and form of the explanation of why the crypto-asset described in the crypto-asset white paper is not to be considered a crypto-asset excluded from the scope of MiCA, an electronic money token as defined in Article 3(1), point (4) or ) an asset-referenced token as defined in Article 3(1), point (3) (ESMA, EIOPA and EBA)
  •  Clément Luzeau added that:
    • To guarantee maximum harmonization a special digital finance standing committee was established, where representatives of NCAs will meet and discuss implementation at the national level
    • Other tools, such as peer reviews of NCAs may be used to boost harmonization
    • ESMA is already has an implementation plan
    • Public consultation will start before or right after summer.
    • There will be a register of non-compliant CASPs shared among MSs
  •  Marianne Jarlaud and Klas Malmén stressed that:
    • MiCA has better tools to prevent regulatory arbitrage, yet, there still exist the risk of jurisdiction shopping,
    • Their, and other, NCAs are open to discuss the implementation of MiCA with the market.

Action Items

  1. EDFA will discuss with DG FISMA the possibility of a series of MiCA outreach events in member states to support the discussion between NCAs, ESAs, European Commission and national market players.

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