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Home » EU Policy Update: MiCA Endorsement to Have Global Impact

EU Policy Update: MiCA Endorsement to Have Global Impact

byMark Foster
October 13, 2022
in Policy Briefs

Summary:

  • On October 5, an important procedural hurdle was cleared in Europe as EU ambassadors formally endorsed the final text of the Markets in Crypto Assets Regulation (MiCA).
  • MiCA represents the first attempt by a leading global jurisdiction to legislate digital assets (stablecoins) and the crypto ecosystem.
  • It will ensure a harmonized regime across the EU, with an impact at global level given many of those players caught by the scope are headquartered in other regions.
  • Read more Crypto Council explainers

Further Details:

MiCA represents the first attempt by a leading global jurisdiction to legislate digital assets (stablecoins) and the crypto ecosystem. The Regulation is a piece of directly applicable EU law. As such, it will ensure a harmonized regime across the EU, with an impact at global level given many of those players caught by the scope are headquartered outside the EU. And given how many other jurisdictions are thinking about digital assets, MiCA could provide some useful steers on what to do (and perhaps also what not to do, in some cases….)

So who’s in/covered by the scope?

In short, it sets out EU rules covering issuers of unbacked crypto-assets, stablecoins (Asset Reference Tokens and Electronic Money Tokens), trading venues and crypto-asset service providers (CASPs) which are not considered financial instruments covered by MiFID II and crypto-wallets.

What’s out?

The Regulation does not apply to crypto-assets provided in a “fully decentralized way” without any intermediary, essentially carving out most DeFI applications, even if the term ‘fully’ is vague and not defined. Nor does it apply to the offering of crypto-assets (other than ARTs and EMTs) offered for free or automatically created as a reward for the maintenance of the DLT or the validation of transactions in the context of a consensus mechanism – so layer 1 utility tokens are also largely unaffected.

Are NFTs covered?

Not really, as long as the are unique and not fungible. However, issuance of crypto-assets as NFTs in a large series or collection should be considered as an indicator of fungibility. The Regulation therefore does applies to crypto-assets that appear unique and not fungible, but whose de facto features or uses make them either fungible or not unique.

White papers?

One of the key requirements on issuers of all MiCA crypto-assets, offerors or persons seeking admission to trading is to produce, notify the competent authority, and publish a white paper. The white paper will need to include information on the offeror and/or issuer seeking admission to trading, the operator of the trading platform and the principal adverse environmental and climate related impact of the consensus mechanism used to issue to crypto-assets.

Asset-Reference tokens (ARTs)

  • Authorization and supervision: ART issuers will require authorization and will be supervised by national competent authorities. There are monitoring and reporting requirements (quarterly) for ARTs with a value issued higher than EUR 100 million.
  • Cap: A last-minute modification in Council introduced a cap appliable to both euro and non-euro denominated ARTs when quarterly average number and value of transactions per day associated to uses as means of exchange is higher than 1 000 000 transactions and EUR 200 million, respectively. Investment and trading activities are not included but settlement is. This provision is likely to be detrimental to the development of digital assets in Europe but was ultimately included as it was seen as necessary in order to protect monetary independence and financial stability.
  • Reserve requirements: Reserves need to be operationally segregated from the issuer’s estate, and from the reserve of assets of other tokens. Risks associated to ARTs need to be covered liquidity risks addressed.

Significant ARTs

The European Banking Authority (EBA) will supervise significant ARTs if they meet 3 of the following criteria: I) the number of holders of ARTs is larger than 10 million EUR, II) the value of ARTs  or the size of the reserve is higher than 5 billion EUR, III) the number and value of transactions in the ARTs is higher than 2,500,000 transactions and 500 million EUR per day, IV) the issuer is a designated gatekeeper (as per the Digital Markets Act) or V) depending on the significance of the activities on an international scale.

Issuers of significant ARTs will be required to conduct liquidity stress testing on a regular basis and depending on the outcome of such tests EBA may decide to strengthen the liquidity risk requirements.

Electronic Monet Tokens (EMTs)

The rules for EMTs are similar to those for ARTs, with perhaps a few slightly less onerous obligations (authorization for example). EBA will also be responsible for significant EMT supervision.

EMTs denominated in a currency not official in any EU Member State must follow the rules regarding limits on transactions used as a means of exchange and settlement.

CASP supervision

CASP supervision will be the responsibility of NCAs, whereas significant CASPs will have specific reporting requirements to NCAs, who shall share these reports with ESMA, the latter having product intervention powers to temporarily prohibit or restrict activity or practice when there are clear and demonstrable irregularities committed by a CASP or an issuer.

What happens next?

MiCA timeline following finalization and endorsement

The European Parliament still needs to give its approval of the rules. This is expected to be a formality, with committee level endorsement late this month and the full house voting by the end of the year.

The legal texts are expected to be published in Q1 2023 and will enter into force 20 days after publication.

The provisions on ARTs and EMTs will apply 12 months following entry into force of the Regulation (circa spring 2024) and application of the full MiCA framework 18 months following entry into force of the text (circa fall 2024).

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Saskia Seidel

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Saskia Seidel is the Policy Fellow at CCI, conducting legal and policy analysis on crypto regulations and legislative developments across key jurisdictions. She examines bills and regulatory proposals as well as case decisions, providing insights into the evolving landscape of digital assets policy.

Saskia holds a Master of Laws in International Business and Economic Law from Georgetown University Law Center. Originally from Germany, she earned a Bachelor's degree in Law and Economics and passed the First German State Exam in Law to qualify in the legal system.

Before joining CCI, Saskia worked at various law firms specializing in corporate and international tax law, where she developed a strong understanding of how businesses navigate legal and regulatory challenges in a cross-border context and advising on complex legal matters.

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Through her work, she explores the transformative potential of Web3 in addressing global challenges and advancing positive social impact.

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Giles has been a regulator, policymaker, the policy lead of a major digital asset service provider and the global policy director of a leading investment fund trade association. Giles advises trade associations, investment funds and asset managers, and web3 and crypto firms, on public policy, licensing, regulation and advocacy. During his time as a policymaker,

Giles was a national expert on the Investment Management Standing Committee of the European Securities and Markets Authority’s (ESMA), a national representative on the Standing Committee on Investment Management of the International Organization of Securities Commissions (IOSCO) and a member of the European Union’s Council of Ministers Financial Services Working Party.

Giles holds a BA in Banking and Finance, first class, from London Guildhall University, an MSc in Finance and Investment from CASS Business School and professional certificates in teaching and learning, and blockchain strategy.

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Peter Herzog is a dedicated government affairs professional, specializing in issues impacting emerging financial technologies. As the Associate Director of State and Local Government Affairs at the Crypto Council for Innovation, Peter oversees initiatives to advance responsible regulation for the digital asset industry across state and local governments.

He has developed a pragmatic approach to building relationships with key decision makers and navigating nuanced policy issues. Before joining CCI, Peter served on the government relations team at the digital mortgage startup Better.com, where he led the organization’s state government relations strategy. He began his career at the Health and Medicine Counsel, a boutique healthcare lobbying firm on Capitol Hill,

where he was one of the youngest registered lobbyists in Washington, DC. His former clients include patient advocacy organizations, trade societies, and pharmaceutical companies. Peter holds a Bachelor’s Degree in Government and International Politics from George Mason University.

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He graduated Williams College with a BA in both Political Science and History.

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His work involved educating policymakers, advising company leadership on policy risks, and ensuring DeFi’s importance to the future of the United States was well understood in Washington. Before transitioning to the private sector, he spent seven years in Senator Cory Booker’s office, where he led on technology, telecommunications, and commerce issues, with work focused on AI, big tech, social media regulation, and digital assets.

As Booker’s lead staffer on crypto policy for the Senate Agriculture Committee, he developed a deep understanding of fi nancial regulation and the legislative vehicles that will be used to shape it.

Patrick Kirby

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Patrick is joining CCI as Policy Counsel, and brings considerable experience engaging with policymakers on emerging technology and financial services issues. Before joining CCI, he worked as an attorney in the US Policy & Government Relations group at the law firms Dentons and Squire Patton Boggs.

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Yele Bademosi is the co-creator of Onboard, a community-first onchain neobank designed for creators and builders. Onboard's goal is to expand the onchain economy, making it accessible to anyone, anywhere, and empowering people to live radically better lives.

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Sean Lee

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Sean is an advisor and entrepreneur in Web3 and FinTech, and has been frequently quoted in Reuters, Forbes, Bloomberg, CoinDesk, among others. Sean was previously the CEO of the Algorand Foundation, an MIT incubated Layer-1 blockchain protocol that reached top-10 by network valuation during his tenure.

He is currently leading the efforts at VSFG, a global financial services platform and the first licensed virtual asset manager in Hong Kong, to develop the regulated HKD stablecoin for programmable payment and cross border use cases across Asia and beyond. Before entering into crypto and blockchain, Sean spent 10 years and held global leadership positions in cloud computing and open source software development companies.

Sean also advises crypto startups and engages in mentorship and advocacy programs including the MIT Entrepreneurship & FinTech Innovation Node, the Chinese University of Hong Kong Business School, and the Hong Kong FinTech Association.

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Matthew Homer is the Founder & General Partner of The Venture Dept. Previously, he was an investor at Nyca Partners, a $1B+ AUM fintech VC firm, where he remains involved as an Operating Partner in an advisory capacity.

Before venture investing, he was Executive Deputy Superintendent at the New York State Department of Financial Services (NYDFS), where he oversaw the licensing and supervision of major digital asset firms, including some of the largest exchanges, custodians, and stablecoin issuers in the U.S.

Earlier in his career, he worked as a federal regulator at the FDIC, focusing on policy development and new technologies. Matt has also held operating roles in fintech startups, starting at Quovo and continuing at Plaid after its acquisition.

Laura Navaratnam

UK Policy Lead

Laura is a digital assets policy expert, and serves as the UK Policy Lead for CCI. Laura is a fintech policy expert, specializing in digital assets. Laura has worked in financial services policy for over 15 years. She worked at the UK Financial Conduct Authority for 7 years where she ultimately served as the Head of the FCA’s Innovate function,

which included all aspects of cryptoasset policy and fintech (sandbox, firm support, international engagement and strategy). She is also a Director at bespoke fintech consultancy Gattaca Horizons, supporting a broad range of US and UK based fintech clients and leveraging her experience to provide policy, regulatory and strategy advice.

She is also a Non-Executive Director for Zero Hash UK, a leading crypto-as-a-service provider.

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She developed and scaled strategic social good programs for leading tech companies, including Amazon, Microsoft, Adobe, Intuit, and VMware, leading the development of program delivery and marketing strategies.

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Amanda Russo

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She led C-suite media relations and content for IHS Markit research divisions across Europe, the Middle East and Africa. As a strategic communications advisor to CEOs, heads of state, and policymakers, Amanda worked on the World Economic Forum’s Public Engagement leadership team as Head of Media Content. Amanda started her career as a terrorism and intelligence analyst.

Yaya J. Fanusie

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He spent seven years as an economic and counterterrorism analyst in the CIA, briefing federal law enforcement, military personnel, White House-level policy makers and the President. After government service, he joined the think tank world and as Director of Analysis at the Foundation for Defense of Democracies’ Center on Sanctions and Illicit Finance led research on sanctions evasion and terrorist financing threats.

In 2016 he began tracking the illicit use of crypto and wrote some of the first public analysis on a terrorist crypto crowdfunding campaign. He later published a major study on efforts by Russia, Iran, Venezuela, and China to build national blockchain infrastructure. Yaya is currently an Adjunct Senior Fellow at the Center for a New American Security (CNAS) and Visiting Fellow at Georgetown's Psaros Center for Financial Markets and Policy.

He is a frequent media commentator and has testified before Congress multiple times on illicit financing issues. He is considered a leading expert on China’s CBDC.

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In his role, Ji led the legal, policy, and regulatory affairs teams and also set and implemented Gemini’s global strategy for engaging with regulators, policymakers, and the government. Prior to that, he was a senior attorney at Kraken, another global digital asset exchange. In prior roles, he was an attorney at Willkie Farr & Gallagher LLP and served as Federal Judicial Law Clerk to the Honorable Robert D. Drain of the Southern District of New York, U.S. Bankruptcy Court.

In prior roles, he was an attorney at Willkie Farr & Gallagher LLP and served as Federal Judicial Law Clerk to the Honorable Robert D. Drain of the Southern District of New York, U.S. Bankruptcy Court.

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She spent significant time as a lawyer and executive in the nonprofit sector helping companies work with emerging technology to solve problems and increase efficiency. She was on the leadership team at TechSoup and built NGOsource, an online service that helps US foundations reduce costs on cross-border grants.

Sheila began her career as a Wall Street attorney at Cravath, Swaine & Moore LLP after earning her J.D. at Harvard Law School. She graduated magna cum laude from Harvard College with a degree in Economics. She is the co-host of Money Reimagined, a CoinDesk podcast.

Senator Cory Gardner

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Senator Gardner honorably represented the state of Colorado from 2015 to 2021 after two terms in the United States House of Representatives. During his tenure, Cory was consistently recognized as one of the most bi-partisan members of the Senate, sponsoring and passing milestone legislation like the Great American Outdoors Act,

America COMPETES Act, the Asia Reassurance Initiative Act and the 988 Suicide Prevention Hotline. He served on the Senate Committee on Foreign Relations, Senate Committee on Energy and Natural Resources, and the Senate Committee on Commerce, Science, and Transportation.

Mark Foster

EU Policy Lead

Mark has over 20 years of experience advising public and private sector entities on EU policy and politics. He started his career in Brussels as a European Parliamentary Assistant from 2003 to 2007. He later developed expertise in EU financial services as a Senior Official in the UK Permanent Representation.

In 2011, he moved to Kreab, a global public affairs and consultancy firm, where he became Partner in the financial services practice. He has held elected roles in trade associations including vice-chair at the financial services committee of AmCham EU and he retains a role as vice-chair for the EU/UK task force at the British Chamber of Commerce to the EU.

Mark was VP of Government Relations at Barclays from 2019-2021 before establishing his own business – Strategic Advisory Management - at the start of 2022.

Alison Mangiero

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Alison Mangiero is the Executive Director of Proof of Stake Alliance (POSA), a CCI project that advocates for clear and forward-thinking public policies that foster innovation in the rapidly growing, sustainable, multi-billion dollar staking industry.

Alison began working in the industry in 2018, when she founded the Tocqueville Group (“TQ”), an entity that created open-source software and other public goods for Tezos, one of the first proof-of-stake blockchains to launch. Before founding TQ, she spent a decade in public policy and academia, and has broad experience fundraising and growing membership associations.

A passionate advocate of the liberal arts, Alison also teaches courses on leadership at the College of the Holy Cross and is on the Executive Board of Advisors for the University of Richmond's Jepson School of Leadership Studies.An alum of the University of Richmond and Boston College, Alison lives in the New York City suburbs with her husband and two young daughters.