In this issue, ECOVIS ProventusLaw presents a curated selection of key developments from the European crypto regulatory landscape. It provides viewers with a glimpse into the future and high-profile insights into the ever-evolving crypto industry.
ESMA Statement, reminder on obligations under CFD product intervention measures
ESMA reminded firms that perpetual futures/contracts offering leveraged exposure to crypto-assets (e.g., Bitcoin) are likely to fall within the scope of existing national CFD product intervention measures.
Where the CFD definition is met, firms must comply with:
1. leverage limits;
2. mandatory risk warnings;
3. margin close-out and negative balance protection;
4. prohibition of monetary and non-monetary benefits.
Additionally:
1. A narrow target market and aligned distribution strategy are required, given product complexity.
2. Appropriateness assessments must be carried out for non-advised services.
3. Conflicts of interest must be identified, prevented or managed.
Companies offering perpetual futures or similar leveraged derivatives should:
1. Assess whether the product falls within the CFD definition and applicable national intervention measures.
2. Ensure full compliance with CFD requirements (leverage limits, risk warnings, margin close-out, negative balance protection, benefits prohibition);
3. Define a narrow target market and review distribution strategy;
4. Implement appropriateness assessments for non-advised clients;
5. Review and update conflicts of interest policies.
ESMA Q&As, MiCA and Others
ESMA published new and updated Q&As.
Markets in Crypto-Assets Regulation (MiCA)
1. Clarification on Withdrawal Requirements under Article 75 of MiCA for CASPs (2320)
2. Calculation of fixed overheads (2349)
3. Interests earned from client funds deposited at credit institutions (2486)
4. Payouts in fiat currency by CASPs in the context of exchange services (2550)
5. Overlap between offers of crypto-assets and placing (2551)
6. Application of Title II requirements to CASPs operating a trading platform for crypto-assets (2552)
Detailed information:
1. Withdrawal requirements (Art. 75) – CASPs providing custody and administration services must ensure procedures are in place to return the same type of crypto-asset held at the time of the client’s request; the words „return crypto-assets held“ mean the identical type of asset must be returned, not an equivalent; CASPs cannot require clients to withdraw in fiat currency or other crypto-assets, though they may offer this as an option only upon obtaining explicit client consent at the time of withdrawal; where a conversion option is offered, the CASP must be separately authorised for the additional crypto-asset service involved (e.g. exchange of crypto-assets for funds, exchange for other crypto-assets, execution of orders, or reception and transmission of orders); CASPs should not take on custody of assets they foreseeably cannot return; technical limitations must not make withdrawal difficult for most clients; all fees, technical requirements and conversion options must be agreed upfront in the Article 75(1) MiCA agreement;
2. Fixed overheads calculation (Art. 67) – the prudential safeguard must be calculated from the total of all overhead expenses, both fixed and variable, using figures from the applicable accounting framework; only the items listed exhaustively in Art. 67(3)(a)–(d) may be subtracted – unlike under IFR (Regulation 2019/2033), Art. 67 MiCA does not allow NCAs or CASPs any discretion to subtract additional items; the requirement is consumer protection-oriented and all overhead costs must be covered;
3. Client funds interest – CASPs may not earn interest on client funds deposited at credit institutions; Art. 70(1) – (3) MiCA requires CASPs to deposit client funds in risk-free savings accounts solely for the benefit of clients; any interest generated as a result of complying with Art. 70(3) must be transferred entirely to the client since it derives from client funds;
4. Fiat-only payouts – a business model where clients can only collect their balance in fiat currency without the possibility of having the purchased crypto-asset transferred to them is not permitted under MiCA; where a client purchases a crypto-asset, the CASP incurs an obligation to transfer that specific asset; a service where an entity offers clients to “buy” a crypto-asset that is never delivered and can only be redeemed in fiat is not to be allowed as a crypto-asset exchange service; offering fiat collection as an optional alternative remains permissible provided crypto-asset transfer is also available;
5. Overlap between offers of crypto-assets and placing – persons offering crypto-assets to the public on behalf of an issuer under written consent (e.g. under Art. 16(1) MiCA second subparagraph) act on behalf of the issuer and do not require a CASP licence for that activity alone, provided it is not exercised in the context of providing crypto-asset services on a professional basis; however, where such person engages in placing of crypto-assets or any other MiCA crypto-asset service on a professional basis, a CASP licence is required for the relevant services; such persons must in all cases comply with MiCA’s offer and marketing provisions (e.g. Arts. 27, 29 and 40 for ARTs);
6. Application of Title II requirements to trading platforms – Art. 5(2) MiCA, which requires CASPs operating a trading platform to comply with Art. 5(1) where they initiate admission to trading and no white paper has been published, does not apply to crypto-assets without an identifiable issuer, as no white paper is required for such assets under MiCA (recital 22); however, CASPs are not relieved from their general authorisation obligations, must conduct suitability assessments of all admitted crypto-assets and determine whether an identifiable issuer exists; CASPs must also provide clients with hyperlinks to white papers where a white paper is required under MiCA. Other Q&As published: AAR threshold calculation, AAR representativeness obligation, AAR stress testing (EMIR/CCPs); use of fiduciary (nominee) structures in equity crowdfunding; interaction of IFRS 18 & APM Guidelines (effective 1 January 2027).ESMA published new and updated Q&As.
EBA Opinion on the end of the No-Action Letter transition period, interplay between PSD2 and MiCA (EBA/Op/2025/08)
The EBA published an Opinion advising NCAs on how to proceed once the 9-month PSD2/MiCA transition period expires on 2 March 2026. Three scenarios apply:
1. ASP has obtained PSD2 authorisation or partnered with an authorised PSP, and may continue EMT services;
2. CASP has submitted an application but has not yet received authorisation. NCA may allow continued EMT services only if:
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- application duly submitted with all required documents;
- The applicant responds to NCA queries exhaustively and expeditiously.
- NCA has verified no material supervisory measures or MiCA/AML infringements;
- NCA has no reason to expect non-compliance, and approval is expected within a very short timeframe. In this scenario, the CASP must cease marketing EMT payment services and must not onboard new clients.
3. CASP has not submitted an application or fails to meet scenario 2 conditions, NCA must require the CASP to cease EMT payment services and offboard relevant clients as of 2 March 2026.
CASPs transacting EMTs that qualify as payment services should urgently verify which scenario applies to them.
CASPs in scenario 2 must ensure full cooperation with their NCA and immediately cease marketing and new client onboarding for EMT payment services.
CASPs that have not submitted a PSD2 application must discontinue EMT payment services as of 2 March 2026.
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