Summary
Tokenised financial instruments and deposits remain outside MiCAR. A bank-issued e-money token (EMT) does not become a deposit merely because a bank issues it. The classification determines which issuance, safeguarding and redemption duties apply. (MiCAR, arts. 2(4), 3(1)(6)–(7) and 48; ESMA, Guidelines on the qualification of crypto-assets as financial instruments, paras. 11–15.)
Reserve protection, issuer capital and customer custody protect against different failures. Asset-referenced token (ART) issuers, electronic money institutions (EMIs) issuing EMTs and banks issuing EMTs do not share one reserve formula. A common percentage or a common blockchain cannot establish equivalent creditor protection. (MiCAR, arts. 17(4), 35–38, 45, 54, 58 and 75.)
EMT holders have a claim against the issuer for redemption at par. ART redemption follows the market value or delivery of the referenced assets. Ordinary redemption rights coexist with statutory recovery measures, so permanent access to redemption does not eliminate legally authorised crisis restrictions. (MiCAR, arts. 39, 46, 49 and 55.)
A crypto-asset service provider (CASP) permission does not replace a payment-services permission where the activity requires one. Client crypto-assets and client funds also attract different safeguarding provisions. Proposed PSD3 and PSR provisions require separate treatment from the obligations already imposed by MiCAR. (MiCAR, art. 70; Council documents ST 8222/26 and ST 8221/26, 17 April 2026.)
Official institutions disagree about the present treatment of EU and third-country multi-issuer arrangements. The Commission's consultation states that MiCAR does not prohibit them. The European Systemic Risk Board (ESRB) and European System of Central Banks (ESCB) seek an express legislative basis before permission. Neither position supplies an enacted equivalence passport. Each issuer's liability and access to reserves remain decisive. (Commission consultation, question 30; Recommendation ESRB/2025/9, recommendation A; ESCB, Response to the MiCAR consultation, September 2026, pp. 29–32.)
Significant-token supervision and significant-CASP monitoring use different tests and institutional arrangements. Existing MiCAR obligations reach outsourcing and conflicts, but proposals for general group consolidation, an EU intermediate parent and direct ESMA supervision of CASPs require legislative change. (MiCAR, arts. 43, 56, 73, 85, 117 and 119; ESCB response, pp. 33–35 and 41–42.)
Lending, staking and decentralised interfaces require analysis of control, repayment obligations and the service actually performed. The absence of a separately named MiCAR lending service does not exempt associated custody or transfers. Duration-linked remuneration on ARTs and EMTs can breach the interest prohibitions even when a third party pays it. (MiCAR, recital 22, arts. 3(1)(16), 40, 50, 70 and 75.)
Segregation duties and central-bank-money settlement do not establish every proprietary or insolvency consequence. Pontes commenced operations on 21 September 2026, with phased participation and development. Its launch does not determine ownership of the asset delivered or the enforceability of collateral. (MiCAR, arts. 36(2) and 75(7); ECB, “Eurosystem brings central bank money to tokenised finance”, 21 September 2026; ESCB response, pp. 49–52.)
Direct token protection must be separated from protection of an underlying bank deposit. Directive (EU) 2026/804 introduces conditional protection for client-funds deposits, with national implementing provisions generally applicable from 11 May 2028. It does not convert an EMT into an insured deposit or cover every issuer failure. (MiCAR, art. 51(4); Directive (EU) 2026/804, arts. 1(9) and 3.)
Legal effect of the MiCAR review
A consultation response cannot amend MiCAR or authorise conduct that its operative provisions prohibit. Article 140 requires the Commission to report by 30 June 2027 and, where appropriate, accompany its report with a legislative proposal. The targeted consultation opened on 20 May 2026 and closes on 30 September 2026. Its questions identify matters for assessment; they do not establish new permissions, capital requirements or supervisory powers. (MiCAR, art. 140(1); Commission consultation, pp. 1 and 4; Commission, Targeted consultation on the review of MiCA Regulation, timetable.)
Three legally different categories require separate treatment. MiCAR supplies directly applicable obligations. Adopted directives may require later national implementation. Consultation responses and negotiated draft texts describe institutional positions without themselves imposing the proposed duties. A firm can assess a proposed reserve or group structure against those positions, but its present permissions must rest on operative law. The client-funds amendment illustrates the timing distinction: the legislature adopted Directive (EU) 2026/804, while its general national application date is 11 May 2028. (Directive (EU) 2026/804, arts. 3–4; Council documents ST 8222/26 and ST 8221/26, 17 April 2026; ESCB response, pp. 2–6.)
Classification of the holder's claim
MiCAR excludes crypto-assets qualifying as financial instruments, deposits and the other products listed in Article 2(4). Within its scope, an EMT purports to maintain stable value by reference to one official currency. An ART does so by reference to another value or right, or a combination, including official currencies. (MiCAR, arts. 2(4) and 3(1)(6)–(7).)
A transferable token carrying security rights must first undergo the financial-instrument assessment. ESMA's nonbinding guidelines apply technological neutrality and require examination of the relevant MiFID category. For transferable securities, the stated conditions concern a class of securities, negotiability on the capital market and exclusion of instruments of payment. An asset's use on a distributed ledger does not independently satisfy or defeat those conditions. (ESMA, Guidelines on the qualification of crypto-assets as financial instruments, ESMA75453128700-1323, paras. 11–15 and 20–21.)
A claim against a managed investment pool cannot avoid that examination by describing its reference assets as a stabilisation reserve. The question remains whether the issued rights constitute a financial instrument within Article 2(4)(a). If they do, the MiCAR exclusion follows even where the marketing describes the instrument as an ART. If they do not, the remaining MiCAR definitions still require examination. This is a conditional classification result, not a presumption that every commodity-linked or fund-linked token belongs to either category. (MiCAR, arts. 2(4)(a), 3(1)(6) and 18(2)(e); ESMA guidelines, paras. 11–15.)
Wrapped tokens require a separate assessment of the wrapper holder's rights. A wrapper can introduce a claim against a custodian, an intermediary or a pool that differs from direct ownership of the referenced asset. Hybrid features likewise require examination together. MiCAR's exclusion for unique, non-fungible crypto-assets concerns their substantive characteristics; a unique identifier does not by itself establish that exclusion. Fractional interests and issuance in large series require the assessment described in recital 11. (MiCAR, art. 2(3)–(4), recitals 10–11; ESMA guidelines, paras. 61, 65–76.)
Tokenised deposits and bank-issued electronic money
A bank can issue different legal products on the same technical infrastructure. A token qualifying as a deposit remains outside MiCAR under Article 2(4)(b). An EMT falls within Title IV and is deemed electronic money under Article 48(2). The bank's identity does not collapse that distinction. Classification must establish whether the customer holds the deposit claim itself or a separately issued token with another legal entitlement. (MiCAR, arts. 2(4)(b), 3(1)(7) and 48(1)–(3).)
The ESCB's September response proposes common deposit characteristics for this assessment. These concern a credit balance, receipt of funds from the public, repayment at par and a claim against an authorised credit institution. The proposal does not create a new harmonised operative definition. Its relevance is analytical: recording an existing deposit claim through distributed ledger technology (DLT) need not change the debtor or repayment promise, while a transferable instrument with different rights requires another classification assessment. (ESCB response, pp. 45–49.)
A proposed deposit arrangement should specify which record establishes the bank's debt and whether transfer changes the depositor. A second token referencing a conventional account requires an additional inquiry into the relationship between those records. If the token merely gives a claim against an intermediary, the holder cannot assume it has acquired the underlying customer's deposit. The applicable exclusion depends on the legal product represented by the holder's own entitlement. (MiCAR, art. 2(4)(b); ESCB response, pp. 46–49.)
Issuer eligibility and legal-entity choice
Subject to the exemptions in Article 48(4)–(5), public offers and admission to trading of EMTs require an issuer authorised as a credit institution or electronic money institution. MiCAR also requires the prescribed white paper and notification. A distributor acting with written consent does not acquire the issuer's permission for its own independent issuance. ARTs use the separate routes in Articles 16 and 17, including the bank-specific notification procedure. (MiCAR, arts. 16–17 and 48(1), (4)–(7).)
Bank issuance requires product-specific treatment. Article 17(4) exempts a bank issuing ARTs from specified provisions, including Article 35's own-funds rule. It does not exempt that bank from Articles 36–38 on reserves, custody and investment. A conclusion that all bank-issued stablecoins escape segregated reserves would therefore misapply the ART exemption. (MiCAR, arts. 17(4) and 36–38.)
For bank-issued EMTs, the ESCB describes direct balance-sheet issuance and issuance through an EMI subsidiary as distinct structures. It opposes a general requirement to impose an EMI-style segregated reserve on direct bank issuance. It also proposes case-specific supervisory power to require a subsidiary. That proposed power must be distinguished from the bank's existing prudential supervision and from the obligations imposed on an actual EMI issuer. (MiCAR, arts. 48, 54 and 58; ESCB response, pp. 18–20.)
A subsidiary structure changes the customer's immediate obligor. Neither group membership nor consolidated branding establishes an enforceable parent guarantee. The issuance terms must therefore identify the entity owing redemption, the applicable safeguarding arrangement and any separate support undertaking. The legally required redemption claim remains against the issuer identified under Article 49. (MiCAR, arts. 49(1)–(3) and 51(1).)
Capital and the allocation of losses
For a non-bank ART issuer, Article 35 ordinarily requires the highest of three amounts: EUR 350,000, 2% of the relevant average reserve amount and one quarter of the preceding year's fixed overheads. The reserve measure uses the specified six-month averaging period. Significant ARTs attract the 3% reserve-based requirement in Article 45(5), while the other applicable requirements and supervisory adjustments require separate assessment. (MiCAR, arts. 35(1)–(5) and 45(5).)
Capital and reserves perform different legal functions. Article 36 requires assets supporting the redemption liability, while Article 35 imposes an own-funds requirement on the issuer. Satisfying one duty does not establish compliance with the other. Using protected reserve assets as unrestricted operating finance would conflict with the segregation and custody constraints. (MiCAR, arts. 35–37.)
EMI-issued EMTs require their own analysis. Article 58 replaces specified electronic-money requirements for significant EMT issuers with identified MiCAR provisions. Its cross-references do not import every ART capital provision into every EMT issuer. A calculation must first establish the issuer's status and whether significance activates the substitution. Article 58(2) also permits specified requirements for a non-significant EMI issuer where the statutory risk conditions justify them. (MiCAR, arts. 48(3) and 58(1)–(2).)
The ESCB proposes greater sensitivity to risks arising from additional activities and integrated business models. That position concerns possible revision of statutory requirements. It does not itself authorise a supervisor to impose every proposed group-wide charge. Existing powers and applicable adjustments must be identified before a proposed calculation is treated as compulsory. (MiCAR, arts. 35, 45, 58 and 67; ESCB response, pp. 9–11 and 33–38.)
Reserve composition and redemption liquidity
The commonly discussed 30% and 60% figures have different statutory sources and scopes. Article 54(a) requires at least 30% of funds safeguarded for ordinary EMI-issued EMTs to be deposited in separate accounts with credit institutions. The remainder must satisfy Article 54(b)'s requirements for secure, low-risk, highly liquid instruments denominated in the referenced currency. That rule cannot be applied indiscriminately to bank-issued EMTs or every ART reserve. (MiCAR, arts. 48(3), 54 and 58.)
For ARTs referencing official currencies, Article 36(4)(d) requires the technical standards to specify minimum deposits in each referenced currency. The statutory floor is 30% of the amount referenced in that currency. Article 45(7)(b) supplies the 60% floor for significant ARTs. These provisions concern the content and calibration of the required standards; detailed liquidity compliance also depends on the applicable implementing measures. (MiCAR, arts. 36(4)(d) and 45(7)(b).)
ART reserves must remain legally and operationally segregated. Separate tokens ordinarily require separate reserve pools; multiple issuers of the same ART require one pool under Article 36(5). The reserve's aggregate market value must at least equal the aggregate value of holders' claims. Custody arrangements must protect access and prevent unauthorised encumbrance. A sufficient accounting balance therefore does not establish that assets are legally available when redemption falls due. (MiCAR, arts. 36(2)–(7) and 37(1)–(4).)
The ESCB proposes replacing fixed bank-deposit percentages with liquidity requirements based on when assets can become available. It also seeks tighter diversification and consideration of banks' exposure to stablecoin funding. These are proposals for changing the allocation of liquidity and counterparty risk. They do not release issuers from applicable deposit, reserve or investment requirements before legal change. (ESCB response, pp. 11–15.)
A reserve assessment must distinguish contractual maturity from realisable liquidity. A security may mature after a redemption request but remain saleable; a nominally callable deposit may be inaccessible during bank distress. Article 36(1) requires management of the risks associated with the reserve, and Article 45(3) adds liquidity management for significant ARTs. The practical test is whether legally accessible assets can fund the issuer's required payment under the relevant conditions. (MiCAR, arts. 36(1), 37(1), 39 and 45(3).)
Redemption rights, timing and charges
EMT holders have a direct claim against the issuer and a right to redemption at any time and at par. Redemption must use funds other than electronic money. Ordinary redemption cannot carry a fee under Article 49(6). A term requiring the customer to accept another EMT instead of the statutory payment would not satisfy that rule. (MiCAR, art. 49(1)–(6).)
ART holders have a different entitlement. Article 39 requires redemption through payment equivalent to the market value of the referenced assets or delivery of those assets. Where the issuer accepted funds other than electronic money in an official currency, it must offer redemption in that currency. The distinction matters when reference assets change value: ART redemption is not a universal promise to return the original subscription amount. (MiCAR, art. 39(1)–(3).)
The permanent right does not specify a universal numerical processing period. The ESCB seeks closer coordination of redemption timing and liquidity requirements. A proposed maximum period or benchmark discussed in that response must not be presented as an existing MiCAR deadline. The present obligation remains redemption on the statutory terms, supported by disclosed procedures that cannot negate the right. (MiCAR, arts. 39(2) and 49(2)–(5); ESCB response, pp. 15–17.)
Recovery measures qualify the ordinary position. Article 46 permits recovery plans to include liquidity fees, redemption limits and suspension measures; Article 55 applies the relevant planning provisions to EMT issuers. Those mechanisms operate within the statutory recovery process. They do not justify adding an unrestricted ordinary-course fee or suspension clause to avoid Articles 39 or 49. (MiCAR, arts. 39(3), 46, 49(6) and 55.)
Interest prohibitions and connected benefits
MiCAR prohibits issuers and relevant CASPs from granting interest on ARTs and EMTs. Articles 40 and 50 extend the concept to remuneration or benefits related to the holding period. The provisions cover third-party delivery and economically equivalent arrangements. A reward calculated by reference to how long a customer holds the token therefore requires assessment even when the issuer calls it a loyalty benefit. (MiCAR, arts. 40 and 50.)
The statutory connection to the holding period remains material. Every discount, promotional payment or staking receipt cannot automatically be classified as prohibited interest. The assessment must identify the payer, the benefit, its conditions and its relationship to token holding. The strongest defence is that the payment genuinely compensates a separate activity and does not reward retention of the ART or EMT. That defence fails where the arrangement reproduces the prohibited duration-linked benefit. (MiCAR, arts. 40(3) and 50(3).)
The ESCB seeks broader treatment of indirect remuneration through lending and layered arrangements. Its recommendation identifies possible circumvention without establishing that all crypto-asset yield is already unlawful. Separate lending or investment obligations may apply, and the existing interest prohibition must still be applied to its specified actors and conditions. (ESCB response, pp. 17–18 and 44–45; MiCAR, arts. 40 and 50.)
Payment services and the safeguarding of client money
An EMT is electronic money under Article 48(2), but the service performed remains a separate question. Article 70(4) requires an appropriately authorised person to provide payment services associated with crypto-asset services. A CASP cannot infer payment-services permission from its MiCAR authorisation alone. A lawful arrangement can use an authorised third party, provided the actual allocation of functions satisfies the applicable duties. (MiCAR, arts. 48(2) and 70(4).)
Article 70 distinguishes safeguarding of crypto-assets from handling other client funds. Its first paragraph requires protection of clients' ownership rights and prohibits use of their crypto-assets for the CASP's own account. Paragraphs 2 and 3 govern client funds other than EMTs, including placement by the end of the following business day and separate identification. Treating every customer balance as interchangeable would obscure those different requirements. (MiCAR, art. 70(1)–(3).)
The exemption for credit institutions, payment institutions and electronic money institutions concerns Article 70(2) and (3). It does not remove the first paragraph's protection of client crypto-assets or the fourth paragraph's payment-services condition. A dual-permission business must identify which safeguarding rule covers each receipt and which entity holds it. Its second permission does not establish that every customer receipt is covered by the payment-services safeguarding rules. (MiCAR, art. 70(4)–(5); ESCB response, pp. 35–38.)
The April 2026 PSD3 and PSR compromise texts distinguish EMT payment functions from certain exchange and investment functions. They also address authorisation, notifications and safeguarding. Their proposed distinctions can inform examination of a future operating model, but the compromise texts do not themselves replace an operative permission or disapply Article 70. (Council document ST 8222/26, 17 April 2026, recitals 4 and 16; Council document ST 8221/26, 17 April 2026, recitals 28, 29 and 29a and proposed art. 67a.)
Custody, ownership and the limits of segregation
A custody agreement must specify the service and the parties' responsibilities. Article 75 requires a register of positions, a custody policy and procedures for returning assets or access. It also requires separation of clients' crypto-assets from the provider's own holdings. These duties supply an enforceable standard for the provider's conduct, rather than a complete answer to every property question concerning the token. (MiCAR, art. 75(1)–(7).)
Legal segregation must protect custody assets against the provider's creditors, particularly in insolvency, under applicable law. Operational segregation concerns records and means of access. The distinction has practical consequences: a separate wallet may fail to establish the required creditor protection, while a legally protected omnibus arrangement still needs accurate individual entitlements. The contract, records and applicable law must support the same allocation of assets. (MiCAR, arts. 70(1) and 75(2), (5) and (7).)
Article 75(4) also addresses changes to a distributed ledger that create or modify customer rights. The customer ordinarily receives the resulting assets or rights to the extent of its position at the relevant time. An express, valid agreement signed before the event can provide otherwise. Custody terms must therefore address forks and similar events without treating the provider's control of keys as ownership of the resulting entitlement. (MiCAR, art. 75(4).)
A CASP may use another custody provider only under Article 75(9)'s authorisation condition. Outsourcing does not remove the original provider's responsibility under Article 73. The arrangement must therefore permit the first provider to reconcile positions, obtain information and meet return obligations. A contractual chain that prevents those functions creates a compliance problem even where each participant operates technically separate wallets. (MiCAR, arts. 73 and 75(9).)
Lending changes this analysis when the customer transfers assets for the intermediary's own use and receives a repayment claim. Custody protection cannot simply be assumed to continue over assets that the arrangement permits the intermediary to consume or transfer. The legal assessment must first establish whether the relationship remains custody, becomes borrowing, or combines separate services. MiCAR's prohibition on own-account use of custody assets prevents treating those alternatives as interchangeable. (MiCAR, arts. 70(1) and 75; ESCB response, pp. 44–45.)
Deposit protection for tokens and underlying accounts
An EMT white paper must state that the token is not covered by deposit-guarantee or investor-compensation schemes. A bank issuer does not remove that prescribed warning. Protection of a separate bank account holding safeguarded funds concerns a different asset and a different failure event. An issuer's default and the reserve bank's unavailability therefore require separate legal assessments. (MiCAR, art. 51(4); Directive (EU) 2026/804, art. 1(9), inserting Directive 2014/49/EU, art. 8b.)
New Article 8b conditions client-funds protection on cumulative requirements. The underlying clients must qualify for protection. Their money must be held in separate accounts under the relevant EU safeguarding obligations, and the clients must be identified or identifiable before the prescribed bank-failure determination. An account labelled “reserve” does not, by that label alone, satisfy those requirements. (Directive (EU) 2026/804, art. 1(9), inserting Directive 2014/49/EU, art. 8b(1).)
The amended provision applies the Article 6(1) coverage level to each qualifying client and supplies a specific aggregation rule. It permits repayment through the account holder for clients' benefit or directly to clients. Those mechanics make records of individual entitlements legally material. They do not supply blanket coverage for securities in a reserve or losses caused by the token issuer's business. (Directive (EU) 2026/804, art. 1(9), inserted art. 8b(2)–(3).)
Member States must generally apply the implementing provisions from 11 May 2028. The enacted future rule should therefore be distinguished from an account-specific assessment under presently applicable national provisions. Even after that date, a claim to protection depends on Article 8b's conditions and the protected deposit, rather than on the mere circulation of a token. (Directive (EU) 2026/804, art. 3; MiCAR, art. 51(4).)
EU access, passporting and third-country solicitation
A provider needs the appropriate Article 59 authorisation or Article 60 entitlement to provide crypto-asset services in the Union. Existing regulated entities receive only the permissions and conditions specified for their category. An EMI's Article 60 route concerns custody and transfer services for the EMTs it issues; it does not confer every CASP service. Cross-border provision also requires the Article 65 procedure where applicable. (MiCAR, arts. 59, 60(4) and 65.)
The maximum transitional period for previously operating CASPs ended on 1 July 2026, subject to earlier national cut-offs and earlier authorisation or refusal. Historical national registration is therefore not an indefinite substitute for the MiCAR route. The entitlement must be checked for the entity, services and territory concerned. (MiCAR, art. 143(3); ESMA, Markets in Crypto-Assets Regulation, section on transitional measures.)
Article 61's third-country exception requires the client's own exclusive initiative. Solicitation by the provider, its affiliates or a person acting on its behalf defeats that condition. Contractual disclaimers cannot transform solicitation into exclusive client initiative. The exception also does not authorise subsequent marketing of new types of crypto-assets or services to that customer. (MiCAR, art. 61(1)–(2).)
A group with an authorised EU subsidiary cannot treat that permission as belonging to all affiliates. The entity contracting with the customer and performing the regulated service must hold the relevant entitlement. Shared technology or branding can also be relevant to whether a third-country firm solicited business. A factual allocation of the customer relationship is necessary before applying Article 61. (MiCAR, arts. 59–61 and 73.)
Cross-border multi-issuer arrangements
A globally fungible token can expose holders to different legal claims despite using one token identifier. MiCAR expressly addresses multiple issuers in identified provisions, including the single reserve pool for the same ART and aggregation for significance. Those provisions do not themselves create a complete equivalence or recognition procedure for a third-country issuer. (MiCAR, arts. 36(5), 43(3) and 56(2).)
The Commission's consultation states in question 30 that MiCAR currently does not prohibit multi-issuer schemes involving an EU issuer and a third-country issuer. Recommendation ESRB/2025/9 asks the Commission not to consider those schemes permitted. The ESCB's September 2026 response argues that an express legislative amendment is required before permission. These are materially different official interpretations and recommendations; a legal assessment must preserve the disagreement. (Commission consultation, question 30; Recommendation ESRB/2025/9, recital 13 and recommendation A; ESCB response, pp. 29–32.)
The Commission's position is the strongest basis for an argument against a categorical prohibition inferred solely from statutory silence. The ESRB and ESCB identify the opposing difficulty: duties imposed on an EU issuer may not control foreign issuance, reserve movements or restrictions during distress. Neither side's nonbinding statement removes the EU issuer's operative redemption, reserve and disclosure duties. A proposed arrangement must satisfy those duties on its own terms. (MiCAR, arts. 36–39, 49, 51, 54 and 58; Commission consultation, question 30; ESCB response, pp. 29–32.)
The decisive inquiry concerns who owes each holder and which assets can meet that debt. Common branding, fungibility and an intercompany rebalancing promise do not establish immediate access to foreign reserves. If the EU issuer owes redemption independently, it needs legally available resources sufficient for that obligation. If the terms assign claims elsewhere, the issuance and disclosure assessment must examine whether those terms satisfy the applicable EU requirements. (MiCAR, arts. 39, 49 and 51; ESCB response, pp. 30–32.)
Equivalence, reciprocity, reserve rebalancing and an EU liquidity buffer appear in the proposed safeguards. They are possible conditions for a dedicated future regime, rather than an existing third-country passport. A structure relying on such a regime requires an enacted legal basis and the necessary decisions before treating recognition as available. (ESCB response, pp. 30–32.)
Significance, reporting and transaction limits
Significance is a statutory classification with separate consequences for tokens and providers. An ART ordinarily qualifies when at least three Article 43 criteria are met. The quantitative criteria include more than 10 million holders, a value measure exceeding EUR 5 billion, and a transaction criterion requiring more than 2.5 million daily transactions and EUR 500 million in daily aggregate value. The last two figures form one cumulative criterion. The remaining criteria concern specified structural characteristics. (MiCAR, art. 43(1)–(3).)
EMT significance uses Article 56's procedure and cross-references, including aggregation where several issuers issue the same EMT. A count confined to one issuing entity can therefore understate the relevant statutory measure. Significance transfers specified responsibilities to EBA, subject to the distinctions and exceptions in Articles 56 and 117. It does not transfer every activity of a diversified issuer to one supervisor. (MiCAR, arts. 56 and 117.)
The transaction limits in Article 23 address use as a means of exchange within one currency area. They activate when the relevant quarterly average daily number and aggregate value exceed one million transactions and EUR 200 million, respectively. The two conditions are cumulative. The resulting issuance restriction cannot be inferred merely from high trading turnover or one threshold alone. Article 58(3) extends specified provisions to EMTs denominated in a currency that is not an official currency of a Member State. (MiCAR, arts. 22(1)–(3), 23(1) and 58(3).)
Reporting must distinguish holders, transactions and uses counted under the relevant provision. A ledger address does not necessarily identify one person, their location or the economic purpose of a transfer. The ESCB seeks clearer geographical and sectoral data for these reasons. The present assessment must use the applicable statutory measure rather than substitute wallet counts or undifferentiated on-chain volume. (MiCAR, arts. 22–23 and 43; ESCB response, pp. 23–25.)
CASP capital and supervision of groups
Article 67 requires a CASP to maintain prudential safeguards equal to the higher of its service-class minimum and one quarter of relevant fixed overheads. Annex IV specifies EUR 50,000, EUR 125,000 and EUR 150,000 for the three classes. For a new business, projected overheads enter the calculation under Article 67(2). The safeguards may take qualifying own funds, insurance or a comparable guarantee, or a permitted combination. Treating Article 67 as an unconditional own-funds-only requirement would omit paragraph 4. (MiCAR, art. 67(1)–(6) and Annex IV.)
MiCAR already regulates management, conflicts and outsourcing. Article 73 preserves responsibility when a CASP outsources functions, including within its group. Those duties reach shared services without establishing a general prudential consolidation regime for every mixed crypto group. A group assessment must distinguish the entity's existing duties from proposed capital treatment of other affiliates and activities. (MiCAR, arts. 68, 72–73; ESCB response, pp. 41–42.)
A CASP becomes significant under Article 85 at an average of at least 15 million active Union users per day over the preceding calendar year. The article provides for notification, information exchange and monitoring involving ESMA. It preserves the competent authority's supervisory responsibility. The test differs from token significance and does not itself give ESMA direct authorisation and enforcement over the provider. (MiCAR, art. 85(1)–(4).)
The ESCB proposes direct ESMA supervision, broader significance criteria and an EU intermediate parent for significant CASPs and for structures in which a third-country firm controls, within the EU, a credit institution together with a CASP, an EMI issuing ARTs or EMTs, or both. It also proposes consolidated treatment for complex multi-function groups. These proposals address intra-group exposures and shared risks, but they do not establish an existing MiCAR obligation for every foreign group to create such a parent. EBA colleges for significant token issuers already exist under Article 119 and should not be confused with the proposed CASP arrangements. (MiCAR, art. 119; ESCB response, pp. 33–35 and 41–42.)
Lending, staking and decentralised services
MiCAR's list of crypto-asset services does not separately name lending or borrowing. That omission does not resolve whether a lending business performs custody, transfers, execution or another listed service. Each function requires its own assessment, followed by consideration of other applicable banking or investment rules. A product cannot establish an exemption merely by using “earn” or “staking” in its name. (MiCAR, art. 3(1)(16); ESCB response, pp. 44–45.)
Agency and principal intermediation allocate risk differently. A technical staking service may leave the client exposed to protocol performance while the provider performs specified tasks. A provider that takes assets for its own use and promises equivalent repayment introduces a claim against itself. The contract must identify who controls the assets, who bears losses and whether onward use is permitted. Those facts determine whether custody restrictions or another legal classification apply. (MiCAR, arts. 70 and 75; ESCB response, pp. 44–45.)
Recital 22 distinguishes services supplied in a fully decentralised manner without an intermediary. Partial decentralisation does not establish that condition. An identifiable operator controlling an interface, client relationship or service must still assess its activities against Article 3. The relevant question is whether a covered intermediary supplies a covered service; the absence of a conventional company at protocol level does not answer it. (MiCAR, recital 22 and arts. 2(1), 3(1)(15)–(16); ESCB response, pp. 43–45.)
The existing suitability duties concern advice and portfolio management under Article 81. They should not be extended by assertion to every execution-only or protocol-access service. The Commission's consultation and ESCB response discuss additional safeguards for lending and decentralised access. Those proposals require a legal basis before their particular tests become compulsory, while associated existing custody, conduct and interest duties remain applicable. (MiCAR, arts. 66, 81, 40 and 50; Commission consultation, questions 47, 62, 62.1 and 67; ESCB response, pp. 43–45.)
Settlement, token transfer and collateral
The ECB announced Pontes' operational launch on 21 September 2026 for wholesale tokenised-asset settlement in central bank money. The release describes initial participants and phased development, including expansion of functionality and operating hours. It establishes an available operational service for the stated participation, rather than universal access by every issuer or CASP. (ECB, “Eurosystem brings central bank money to tokenised finance”, 21 September 2026.)
Settlement analysis must still identify the legal effect of each transaction leg. Completion of the cash payment does not establish that the buyer acquired title to the tokenised asset free of competing claims. The ESCB identifies unresolved cross-border questions concerning transfer, custody, collateral and insolvency. A technically simultaneous exchange requires the applicable legal rules to give the intended effect to each transfer. (ESCB response, pp. 49–52.)
A proposed collateral arrangement therefore needs a legally effective grant, the required control or perfection steps and an enforceable remedy. Those requirements depend on the asset, the parties and applicable law. MiCAR custody or reserve compliance does not independently answer them. Reserve assets also remain subject to Article 37's restrictions on encumbrance, so their availability as collateral cannot be assumed from operational access alone. (MiCAR, art. 37(1); ESCB response, pp. 49–52.)
The ESCB discusses several possible EU responses to private-law differences, including targeted harmonisation and conflict-of-laws rules. Each would address different parts of the problem. None of those options supplies an operative EU property rule merely because it appears in the consultation response. A transaction must establish its current proprietary and insolvency effects under the applicable law. (ESCB response, pp. 49–52.)
Operational resilience and third-party dependencies
The Digital Operational Resilience Act (DORA) applies to the financial entities listed in Article 2, including MiCAR-authorised CASPs and ART issuers. Banks and electronic money institutions fall within their own listed categories. Its obligations concern information and communication technology (ICT) risk, incident reporting, testing and third-party arrangements. A crypto business must therefore assess its actual regulated status before deciding which DORA requirements apply. (Regulation (EU) 2022/2554, arts. 1–2.)
Outsourcing leaves the financial entity responsible for compliance. Article 28 also requires information about contractual ICT arrangements and addresses concentration and exit risks. For services supporting critical or important functions, the entity must establish tested exit strategies. A dependency on a provider that prevents access to records, return of data or an orderly exit must be tested against those requirements. (DORA, art. 28(1)–(8); MiCAR, art. 73.)
Private keys, smart-contract permissions and external infrastructure require concrete control decisions. The provider must establish who can approve a transfer, restore access and respond to an incident. The ESCB proposes further crypto-specific measures concerning these risks. That recommendation does not replace the existing DORA duties or prove that every permissionless component is an ICT provider capable of entering a required contract. The contractual and technical dependency must be identified before Article 28 can be applied. (DORA, arts. 3 and 28; ESCB response, pp. 52–53.)
Transfer information and self-hosted addresses
Regulation (EU) 2023/1113 requires specified originator and beneficiary information for covered crypto-asset transfers. The sending provider must submit the information securely before or with the transfer. Article 14(4) expressly allows the information to travel separately from the crypto-asset transaction. Compliance therefore does not require publishing customers' personal data on a public ledger. (Regulation (EU) 2023/1113, art. 14(1)–(4).)
Transfers to and from self-hosted addresses remain subject to specified information requirements when a covered CASP participates. For amounts exceeding EUR 1,000, Articles 14(5) and 16(2) require adequate measures to assess whether the relevant address is owned or controlled by the originator or beneficiary, respectively. The threshold concerns that additional assessment. It is not a general exemption from transfer-information duties below EUR 1,000. (Regulation (EU) 2023/1113, arts. 14(5) and 16(2).)
Providers must also respond to missing or incomplete information through the procedures required by Article 17. Depending on the prescribed risk-based assessment, a transfer may require rejection, return or a request for information. A claim that a wallet is self-hosted does not remove those duties. The ESCB's proposals for wider financial-crime coverage should be distinguished from these existing transfer obligations. (Regulation (EU) 2023/1113, art. 17; ESCB response, pp. 54–55.)
The ESCB also asks whether an undertaking authorised solely as an ART issuer should itself be brought within the anti-money-laundering obliged-entity perimeter. That proposal concerns the issuer's status, separately from a CASP's transfer duties. The issuer, distributor and custody provider must each assess their own regulated activities; one participant's customer checks do not establish the statutory status of another. (ESCB response, pp. 54–55; Regulation (EU) 2023/1113, arts. 14 and 16.)
Recovery, redemption plans and supervisory intervention
A recovery plan aims to restore compliance and the issuer's capacity to meet obligations. A redemption plan addresses orderly redemption when the issuer cannot, or is likely to become unable to, fulfil them. MiCAR requires identified arrangements for reserve realisation, payment of claims and continuity of necessary activities. These plans perform different functions from a general bank-resolution regime. (MiCAR, arts. 46–47 and 55.)
For a bank issuer, recovery and resolution interaction requires attention to the bank's separate status. The ESCB proposes a tailored crisis regime for significant non-bank issuers and greater coordination with banking resolution. Its recommendation does not create a general power to transfer every failing EMI business or apply bank bail-in powers to every stablecoin issuer. The actor, statutory power and affected liability must be identified before a crisis action is treated as available. (MiCAR, arts. 46–47 and 55; ESCB response, pp. 20–22.)
MiCAR already assigns monetary and financial-stability functions to different authorities. Under Article 21(4), a specified negative central-bank opinion requires refusal of an ART authorisation. Article 17(5) supplies the bank-route mechanism. The stated grounds concern payment-system operation, monetary-policy transmission and monetary sovereignty. Article 24 separately provides withdrawal and restriction mechanisms for the issuers within its scope. (MiCAR, arts. 17(4)–(5), 21(4) and 24(2)–(3).)
Financial stability is not absent from existing MiCAR powers. It already appears in competent-authority decisions and the product-intervention provisions. The ESCB seeks a broader central-bank role on that ground. The proposed change concerns who can act and under which test, rather than the creation of financial-stability consideration for the first time. Existing Article 104 and 105 interventions remain subject to their statutory conditions and proportionality requirements. (MiCAR, arts. 21(2)(e), 24(1)(g), 104–105; ESCB response, pp. 26–28.)
Market conduct, private claims and procedural remedies
Market-abuse duties are a separate source of exposure. Title VI concerns crypto-assets admitted to trading or for which admission has been requested. Article 86 extends the relevant conduct rules beyond transactions executed on a trading platform and reaches specified conduct in third countries. An offshore entity or an off-platform transaction cannot infer immunity from location alone. (MiCAR, art. 86.)
Article 15 creates liability for specified defects in a Title II white paper where its conditions are satisfied. The holder must establish the relevant breach and its effect on the acquisition, sale or exchange decision. Liability is not established merely because the token lost value. The article also limits liability based solely on the summary, subject to its stated exceptions, and preserves other civil claims under national law. (MiCAR, art. 15(1)–(6).)
Custody loss has a separate rule. Article 75(8) makes the CASP liable for attributable loss of crypto-assets or means of access, subject to the statutory market-value cap at the time of loss. A provider relying on an event independent of its service must demonstrate that independence. The provision identifies an inherent distributed-ledger problem outside the provider's control as a possible case. An unexplained loss of keys does not, without that demonstration, establish the defence. (MiCAR, art. 75(8).)
A remedy assessment must therefore identify the defendant, duty, loss and applicable proof requirements. Redemption against an issuer, custody compensation and a white-paper claim involve different conditions. Contractual and national-law causes of action may add remedies, but MiCAR does not establish every limitation period, proprietary recovery rule or insolvency priority. Those questions cannot be resolved merely by citing the provider's authorisation. (MiCAR, arts. 15(6), 39, 49, 70(1) and 75(7)–(8).)
CASPs must maintain the complaints procedures required by Article 71. Public enforcement and sanctions remain separate from compensation for a holder's loss. Article 113 requires reasons and judicial challenge for decisions under the Regulation and addresses failure to decide a complete authorisation application within six months. The availability of those procedures does not dispense with the conditions governing the underlying claim or intervention. (MiCAR, arts. 71, 111 and 113.)
Cross-border interoperability and legal recognition
The UK–US Transatlantic Taskforce's July 2026 recommendations call for experiments involving tokenisation and further work on stablecoins, collateral and settlement finality. The recommendations state that the joint stablecoin statement does not supplant or prejudge ongoing regulatory processes. They document cooperation, rather than a mutual authorisation or an EU recognition decision. (HM Treasury, Recommendations of the Transatlantic Taskforce for Markets of the Future, 14 July 2026, recommendations 1–4.)
An EU product can therefore participate in a technically interoperable arrangement while still facing separate access and enforceability conditions. The EU entity must hold its required permission, and each transaction must establish the legal claims that pass between participants. Recognition of a foreign issuer, acceptance of collateral and discharge of a settlement obligation require their respective legal bases; technical connectivity does not supply those bases. (MiCAR, arts. 16, 48 and 59–61; ESCB response, pp. 29–32 and 49–52; HM Treasury recommendations, recommendations 2–3.)
