Crypto-assets subject to TradFi regulation in Europe

An analysis of ESMA's draft Guidelines on the qualification of crypto-assets as financial instruments under MiCA


On 29 January 2024, the European Securities and Markets Authority (ESMA) published its proposed Guidelines for the qualification of crypto-assets as financial instruments. These Guidelines apply to crypto-assets that are not stablecoins i.e. asset-referenced tokens (ARTs) and e-money tokens (EMTs). They were set forth to aid the National Competent Authorities (NCA) and market participants in differentiating between assets falling under the scope of:

  • the Markets in Financial Instruments Directive (MiFID II), the EU's legal framework for investment intermediaries, securities markets and trading venues,
  • the Markets in Crypto-assets Regulation (MiCA), the EU's legal framework for issuers of crypto-assets and other service providers, and
  • those currently out of the scope of EU law.

Assets may be classified by NCAs into the following categories:

To learn more about the profound impact ESMA’s proposed Guidelines will have on crypto-asset issuance in Europe, download our concise and informative report.

XReg Consulting is a team of policy and regulatory experts that helps governments formulate sound policy, regulators supervise effectively, public authorities build capacity and crypto businesses thrive and follow the rules. For further insights or guidance responding to ESMA's consultation on these draft Guidelines, contact us at

For an overview of which consultations have been released by the European Supervisory Authorities and which are left to come, visit XReg's MiCA Standards and Guidelines tracker.

Editor’s Note: An updated version of this report was published on 8 February 2024

[2]Crypto-assets under MiCA refer to all assets in scope of the Regulation, which include utility tokens, e-money tokens and asset referenced tokens.