The EBA publishes final draft technical standards under the Markets in Crypto-Assets Regulation

The European Banking Authority (EBA) today published three sets of final draft regulatory technical standards (RTS) and one set of final draft implementing technical standards (ITS) relating to the authorisation as issuer of asset-referenced tokens (ARTs), to the information for the assessment of acquisition of qualifying holdings in issuers of ARTs and to the procedure for the approval of white papers for ARTs issued by credit institutions under the Markets in Crypto-assets Regulation (MiCAR). These technical standards are key to regulate access to the EU market by applicant issuers of ARTs and persons intending to exercise significant influence on these undertakings via the acquisition of qualifying holdings.

The RTS on authorisation lay down the information requirements to be included when applying for authorisation to offer to the public or seek admission to trading of an ART, so to enable the comprehensive assessment of the application by the competent authority. Following the public consultation, the scope of the authorisation has been amended to clarify that: a) the applicant issuer may only be a legal person or undertaking established in the EU, and b) whilst the issuance is not subject to authorisation, which only covers the public offer or the admission to trading, an application may only be submitted by an applicant issuer, therefore only an issuer may be granted authorisation.

The ITS on authorisation set out the standard application letter and the application template and clarify the process relating to the assessment of completeness of the application by the competent authority. As credit institutions are only required to receive approval to publish a white paper, the RTS and ITS on authorisation do not apply to credit institutions.

The RTS on the detailed content of the information to be included in the notification for of the proposed acquisition of direct or indirect qualifying holdings lay down the information requirements that are necessary to the competent authority to carry out the prudential assessment in case of proposed acquisitions in issuers of ARTs that are not credit institutions.

This information covers five criteria relating to (a) the reputation of the proposed acquirer, (b) the suitability of any person who will direct the target undertaking, (c) the financial soundness of the proposed acquirer, (d) the sound and prudent management of the target undertaking following the acquisition and (e) suspicion that money laundering of terrorist financing is committed or attempted or that it may increase following the acquisition.

Following public consultation, and considering the request of personal data in case of the application for authorisation and of notification of proposed acquisition of qualifying holdings, some recitals reminding the obligation to comply with the privacy regime have been added both in the RTS on information for authorisation and in the RTS on information for notification of proposed acquisition of qualifying holdings. Credit institutions, unlike other issuers of ARTs, do not require authorisation to issue ARTs but must notify its competent authority, and the white paper must be submitted to the competent authority for approval.

The RTS on the procedure for the approval of white papers for ARTs issued by credit institutions sets out the timeframes that credit institutions, competent authorities and the European Central Bank (ECB) or other central banks must follow during the procedure for the approval of a crypto-asset white paper.

Legal basis

The EBA has developed the RTS on information for authorisation in accordance with Article 18(6) of MiCAR and in close cooperation with the European Securities and Markets Authority (ESMA) and the ECB. The draft ITS on standard forms, templates and procedures for the information to be included in the application have been developed in accordance with Article 18(7) of MiCAR and in close cooperation with ESMA.

The RTS on the detailed content of the information that is necessary to carry out the assessment for the acquisitions of qualifying holdings in ART issuers has been developed in accordance with Article 42(4) of MiCAR and in close cooperation with ESMA.

The RTS on the procedure for the approval of white papers for ARTs issued by credit institutions has been developed in accordance with Article 17(8) of MiCAR and in close cooperation with ESMA and the ECB.

Background

Regulation (EU) 2023/1114 on Markets in Crypto-assets establishes a regime for the regulation and supervision of crypto-asset issuance and crypto-asset service provision in the European Union (EU). It came into force on 29 June 2023, and the provisions relating to ARTs will be applicable from 30 June 2024.

Within the scope of MiCAR are the activities of offering to the public or seeking admission to trading of ARTs and electronic money tokens (EMTs) and issuing such tokens. Supervision tasks are conferred on the EBA for ARTs and EMTs that are determined by the EBA to be significant.