The Markets in Crypto Assets Regulation (MiCAR) will gradually take effect in the member states of the European Union from June 30, 2024. Accordingly, national legislators must prepare for this and adapt their laws to the requirements of MiCAR. As MiCAR is a regulation that is directly applicable in all member states, the member states only have very limited scope for influence. Essentially, the national adjustments are likely to relate to the administrative procedure within the relevant member state. Accordingly, the recently published draft legislation on the Financial Market Digitization Act of the Federal Ministry of Finance primarily provides for provisions on the administrative procedure with regard to MiCAR whitepapers, as well as regulations on violations of the MiCAR provisions. While the first parts of the blog series analyzed the requirements for a whitepaper resulting directly from MiCAR, the following section examines how the national legislator plans to implement the MiCAR requirements with regard to MiCAR whitepapers with the draft legislation.
MiCAR Whitepaper to Be Regulated in the New Crypto Markets Supervision Act (KMAG)
The draft legislation for the Financial Market Digitization Act provides for the introduction of an act on the supervision of markets for crypto assets (Crypto Markets Supervision Act – KMAG). This legislation serves to implement MiCAR and also regulates the supervision of markets for crypto assets within the meaning of MiCAR. BaFin is designated as the competent supervisory authority for the provisions of MiCAR. The Crypto Markets Supervision Act expressly clarifies once again that the KMAG does not apply to financial instruments that are not covered by MiCAR. Companies that plan to offer asset-backed tokens to the public or wish to apply for their admission to trading must submit an application to BaFin in accordance with MiCAR. In addition, a MiCAR whitepaper must be prepared and published. In this context, the KMAG specifies that BaFin may require providers and applicants to amend their MiCAR whitepaper if it does not comply with the content or formal requirements of MiCAR. BaFin may also require providers and applicants to include additional information in their MiCAR whitepaper if this appears necessary for reasons of the stability of the financial market or for the protection of the public. The aforementioned also applies to e-money tokens and marketing communications.
Violation of MiCAR Whitepaper Regulations May Lead to Prohibition of Public Offering and Fines
The KMAG also provides for regulations in the event that a provider violates the crypto whitepaper provisions set out in MiCAR. BaFin can issue an order to suspend a public offer or admission to trading for up to 30 days if there is reasonable suspicion that MiCAR has been breached. It may also prohibit a public offer or admission to trading if the requirements set out in MiCAR are violated. This is particularly the case if asset referenced tokens are offered to the public without an approved MiCAR whitepaper. Should a MiCAR Whitepaper not be kept available or not be kept available for the prescribed duration or should supplements to a MiCAR Whitepaper not have been submitted or published, or not have been submitted or published correctly or in full, this also constitutes an administrative offense subject to a fine. The same applies in the event that the MiCAR whitepaper is not updated if a material new factor, material error or material inaccuracy has occurred or the MiCAR whitepaper is not published on the website or is not published for at least ten years.
Rechtsanwalt Dr. Konrad Uhink
The lawyer responsible for providing advice on MiCAR whitepaper creation in our law firm is attorney Dr. Konrad Uhink.