The Markets in Crypto Assets Regulation (MiCAR), which will gradually take legal effect in the European Union from June 30, 2024, stipulates that a crypto whitepaper must be prepared in the event of a public offering of crypto assets or in order to apply for their admission to trading on a trading platform. In the first three parts of the series, we looked at the content requirements for a whitepaper in the case of an offering or admission of crypto assets other than asset-referenced tokens or e-money tokens, as well as asset-referenced tokens and e-money tokens. In this part, we analyze the impact of a MiCAR whitepaper on the marketing of the corresponding crypto assets. MiCAR uses the term marketing communications in this context. However, MiCAR unfortunately does not provide an official definition of the term. The recitals indicate that marketing messages and marketing materials that are also broadcast via new channels such as social media platforms are to be covered. The information contained in marketing messages must be fair, clear and not misleading. The principle applies that the information in promotional messages and marketing materials should be consistent with the information provided in a crypto whitepaper.
Marketing Communications Must Comply with MiCAR Requirements
The principle that marketing communications must be consistent with the information in the MiCAR whitepaper can, of course, only apply if such a whitepaper must be prepared. But regardless of the existence of a crypto whitepaper, marketing communications must be clearly recognizable as such. If a MiCAR whitepaper has been created, the marketing materials must refer to it and provide further information on the provider or the person applying for admission of the crypto assets to trading or the operator of the trading platform for the crypto assets in question. In particular, an Internet address, a telephone number and an e-mail address for contacting must be provided. For crypto assets other than asset-referenced tokens or e-money tokens, a note shall be included stating that the marketing communications have not been approved by any authority. Where the preparation of a crypto whitepaper is required, marketing communications shall not be disseminated prior to the publication of the crypto whitepaper. Market soundings, however, are permitted even before that. Regulators in the member states where the marketing communications are distributed have the authority to verify that the communications comply with MiCAR. If a significant new factor, significant error or significant inaccuracy has occurred that may affect the valuation of crypto assets, the marketing communications must be updated, as must the MiCAR whitepaper.
The Transmission and Publication of Marketing Communications
The provider of crypto assets, persons applying for admission of such crypto assets to trading or operators of trading platforms for such crypto assets must provide the MiCAR whitepaper to the competent authority of their home Member State. In the case of marketing communications, this shall only be done upon request of the supervisory authorities. The providers of the crypto assets and persons applying for admission to trading must publish their marketing communications on their publicly accessible website in a timely manner and in any event prior to the start date of the public offering of the crypto assets or the start date of the admission. The marketing communications must remain available on the website of the providers or persons applying for admission to trading for as long as the crypto assets are held by the public. If marketing communications have been submitted to regulators, the marketing communications must be consistent with the version submitted to the competent authority and any amended version.
Attorney Dr. Konrad Uhink
The lawyer responsible for providing advice on MiCAR whitepaper creation in our law firm is Attorney Dr. Konrad Uhink.
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