MiCAR

Crypto asset white papers do not need to be approved by BaFin or any other competent authority prior to the launch of the token sale. Nevertheless, BaFin has certain regulatory powers to intervene in the case of MiCAR violations.

ESMA is already having a significant impact on MiCAR supervisory practice through numerous guidelines. The EU Commission is considering transferring supervision of CASPs entirely to ESMA in the future. BaFin would then lose its supervisory mandate with regard to CASPs.

Utility tokens are no longer what they used to be. Since MiCAR came into force, utility tokens have been clearly defined in legal terms and, in certain cases, can unlock attractive regulatory advantages for their issuers and providers.

Even after the end of the so-called MiCAR grandfathering period, existing institutions still have the option of obtaining a MiCAR license to expand their business to include crypto assets via the notification procedure with relatively little effort. Who is eligible and how does the procedure work?

The PRIIPs Regulation requires issuers of packaged retail investment products to prepare a key information document. The legal nature of the product is irrelevant. Can the obligation to publish a PRIIPs KID also apply to token issuances?

Stablecoins are the talk of the town. They are undoubtedly crypto assets and regulated under MiCAR. But can they also be considered monetary amounts under the ZAG in individual cases? If so, could the exception for limited networks apply to services relating to them in this case?

Crypto custodians must comply with comprehensive compliance obligations under MiCAR regulations. This includes entering into crypto custody agreements with custody clients that contain the minimum content specified in MiCAR. But what exactly must such custody agreements cover?

In the context of public offerings of token sales designed in accordance with MiCAR, all purchasers should have the same rights. In the case of private investors, however, consumer protection may vary in individual cases due to the Rome-I-Regulation. Is the corrective measure of the Rome-I-Regulation for public offerings of financial instruments also applicable to token sales?

NFTs fall outside the scope of MiCAR, thus offering plenty of scope for innovative business models. But what specific use cases does the technology offer besides tokenized image usage rights, and when is an NFT actually unregulated?

MiCAR is not supposed to apply to tokens that can be classified as financial instruments within the meaning of MiFID regulation. But to which crypto assets does this exemption apply exactly? ESMA has commented on this. The principle of “in dubio pro MiFID2” applies.

Grandfathering is not entirely uniform in MiCAR, but leaves member states leeway in determining the maximum duration of transition periods. EU member states have made extensive use of this, which can cause problems for CASPs operating across the EU.

The issuance of stablecoins is strictly regulated under MiCAR by the provisions on Asset-Referenced Tokens. However, there are exemptions, in particular for issuances not exceeding the equivalent of EUR 5 million. How far-reaching are the exemptions for such issuances?