Summary
- The FMA imposed a €70,000 fine against Bitpanda GmbH. It cited Regulation (EU) 2023/1114, Articles 8(1) and (5), 7(2), 7(1)(e), and 7(1)(d).
- Article 8 requires notification and bars prior approval. Article 8(2) requires notification of marketing communications only upon a competent authority’s request.
- Article 7 required a telephone number, an email address, and the prescribed non-approval and sole-responsibility statement. The default statutory role is “offeror,” subject to two specified substitutions.
- MiCA-VVG § 12 makes the Article 7 and Article 8 breaches administrative offences. Section 15 provides two routes for attributing those breaches to a legal person.
- The €70,000 amount equals 1.4% of the €5 million fixed ceiling. The notice omits count allocation, turnover, gain, harm, fault, cooperation, and remediation findings.
- FMABG § 22(2b) permits a pre-decision appeal waiver when the party knows the expected operative part. The statute does not require an admission of liability.
Published record and charged provisions
The official case materials consist of two FMA notices dated 14 August 2026. The sanction notice identifies Bitpanda GmbH, the €70,000 amount, the cited provisions, the accelerated procedure, and finality. It omits the decision number, decision date, token, evidence, fault findings, penalty reasoning, and any ancillary order.
FMA cited five subprovisions in four published findings. Those findings fall into three groups: notification timing, marketing sequence, and marketing content. The cited duties belong to MiCA Title II, which regulates crypto-assets other than asset-referenced tokens and e-money tokens. FMA’s cited legal basis indicates that classification. The notice omits the asset’s identity and the Article 8(4) classification explanation. Regulation (EU) 2023/1114, arts. 7–8.
Temporal scope and threshold application
MiCA Articles 7 and 8 applied from 30 December 2024. Article 143(1) excludes offers ending before that date. Article 143(2) applies only Articles 7 and 9 to post-date marketing for assets admitted before that date. It gives trading-platform operators until 31 December 2027 to draw up, notify, publish, and update any required white paper. Regulation (EU) 2023/1114, arts. 143(1)–(2), 149(2).
Article 7(2) applies only when Article 4 or 5 requires a white paper. Article 4(2) removes the duties to draw up, notify, and publish a white paper and to publish marketing communications for three offer categories: fewer than 150 persons per Member State acting on their own account, consideration not exceeding €1 million over 12 months, or an offer restricted to qualified investors who alone may hold the asset. Article 4(3) removes Title II for four listed offer types, including qualifying free offers and certain operative utility tokens. Regulation (EU) 2023/1114, art. 4(2)–(3).
An Article 4(2) exemption can remove the Article 7(2) publication sequence because no white paper is required. Article 7(1) still governs any marketing communication. An Article 4(3) exclusion removes Title II, including Article 7. Article 4(4) bars those exemptions after an actor announces an intention to seek admission to trading. Article 4(8) applies Title II when an actor draws up a white paper voluntarily. The notice states that a white paper was required without publishing the threshold facts.
Article 5 contains a separate admission-to-trading route. Paragraph 4 can remove the duties to draw up, notify, and publish a white paper where the crypto-asset is already admitted to trading on another Union trading platform and an existing white paper meets specified conditions. That paragraph leaves Article 7’s marketing-drafting duty in place. Regulation (EU) 2023/1114, art. 5(4).
White-paper notification
Article 8(1) requires an offeror, person seeking admission, or trading-platform operator to notify the white paper to its home authority. Article 8(5) sets a deadline of at least 20 working days before publication. The same deadline covers the Article 8(4) classification explanation. Regulation (EU) 2023/1114, art. 8(1), (4)–(5).
FMA found that Bitpanda failed to notify the white paper within that period. It published no allegation about the classification explanation’s timing or content.
Article 8(3) bars competent authorities from requiring prior approval. Timely notification would therefore not constitute FMA approval. Article 8(2) requires submission of marketing communications only when a competent authority requests them. The charged marketing breaches concern sequence and content under Article 7.
Marketing sequence
Article 7(2) prohibits dissemination of marketing communications before publication of a required white paper. The provision preserves market soundings. Regulation (EU) 2023/1114, art. 7(2).
FMA found that Bitpanda circulated a marketing communication before publishing the required white paper. The notice does not reproduce the communication or identify its audience, channel, date, or purpose. Those omissions prevent review of whether the material was marketing, a protected market sounding, or outside Article 7.
Marketing content
Article 7(1)(d) requires four items: a statement that the white paper was published, the website address of the offeror, person seeking admission to trading, or trading-platform operator, a telephone number, and an email address. FMA charged only the missing telephone number and email address. The notice supplies no basis to infer that the publication statement or website address was missing. Regulation (EU) 2023/1114, art. 7(1)(d).
Article 7(1)(e) requires the statement: “This crypto-asset marketing communication has not been reviewed or approved by any competent authority in any Member State of the European Union.” It must also assign sole responsibility for the content to the offeror, or the specified substitute actor. Regulation (EU) 2023/1114, art. 7(1)(e).
FMA found that Bitpanda omitted both parts of that statement.
Uncharged duties
FMA did not cite Article 7(1)(a), (b), or (c). The publication contains no finding that the marketing was unidentifiable, unfair, unclear, misleading, or inconsistent with the white paper.
FMA also did not cite Article 6 or Article 9. The publication contains no finding that the white paper’s substantive content was defective. It contains no Article 9 finding concerning publication or availability, apart from the sequence finding under Article 7(2).
Austrian offence and corporate attribution
Austria designated the FMA as competent authority under MiCA Article 93(1). MiCA-VVG § 12(1)(2) makes Article 7 breaches administrative offences, and § 12(1)(3) covers Article 8. MiCA-VVG §§ 1, 12(1)(2)–(3).
MiCA-VVG § 15 permits a fine against a legal person through two routes. The first requires a breach by a manager with representation, decision, or control authority. The second covers a breach by a person acting for the company that resulted from deficient supervision or control by such a manager. MiCA-VVG § 15(1)–(2).
The FMA notice does not state which route applied. It omits the responsible natural person, management function, control failure, and fault finding. Austrian administrative penal law generally treats negligence as sufficient unless the special offence sets another standard. VStG § 5(1). The available materials do not permit an independent fault analysis.
Penalty ceiling and proportionality
MiCA requires national powers to sanction Articles 4 through 14 infringements. For legal persons, Article 111 requires maximum fines of at least €5 million and 3% of annual turnover for this category. Twice the gain or avoided loss is another required measure when determinable. Regulation (EU) 2023/1114, art. 111(1)(a), (2)(c), (3)(a)–(b).
Austria implemented those powers through MiCA-VVG § 15(3). The alternatives include €5 million, 3% annual turnover for § 12(1) offences, and twice the gain or avoided loss. MiCA-VVG § 15(3) nos. 2, 5, and 9.
The fixed-ceiling comparison is derived as follows: €70,000 ÷ €5,000,000 = 0.014, or 1.4%. The notice gives no count-by-count allocation, so 1.4% is only a single-ceiling comparator. The turnover and gain-based ceilings could produce different reference amounts.
MiCA Article 112 and MiCA-VVG § 17 require consideration, where appropriate, of gravity, duration, intent or negligence, responsibility, financial strength, gain, third-party loss, cooperation, prior infringements, remediation, and effects on holders or clients. FMA published none of those findings. Bitpanda’s reported claims of correction and cooperation remain company statements.
For these § 12 offences, MiCA-VVG § 16 authorizes a public statement and a cease-and-desist order. The management bans, dealing restrictions, disgorgement, and authorisation measures in § 16(3)–(7) apply to other offence categories. The notice reports a fine and identifies no cease-and-desist order.
Accelerated finality under FMABG § 22(2b)
FMABG § 22(2b) allows a party to waive a complaint before the FMA issues its decision. A valid written waiver requires knowledge of the expected operative part. The legislative notes state that the waiver fails if the issued operative part differs. ErläutRV 1774 BlgNR XXV. GP 9.
A valid waiver makes a later complaint inadmissible, and § 22(2b) permits FMA to omit reasons. Obtaining the decision may therefore leave the factual and penalty analysis unresolved. FMA cited that provision when describing the accelerated closure.
Bitpanda described the outcome as “consensual,” but that remains a company statement. Section 22(2b) creates an appeal-waiver process without requiring a settlement agreement, confession, or admission.
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