Crypto-assets subject to TradFi regulation in Europe

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February 6, 2024

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

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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.

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.

Meet the Authors

Ana James

Senior Consultant

Ana James

As a Senior Consultant at XReg Consulting, Ana leads on a wide range of services for both public and private sector clients. She conducts analyses to determine the most suitable jurisdiction(s) to become authorised, provides regulatory remediation support, assists in the development of regulatory regimes, conducts risk assessments, administers training and works to implement systems and controls that help clients mitigate risk and comply with regulatory obligations.

Since joining XReg as one of the company’s first hires in 2019, she has worked closely with national governments on risk assessments, regulatory authorities on the drafting of virtual asset rules and regulatory guidance, and global members associations on responses to crypto-asset legislation in the European Union. She has also taken a lead role in XReg’s content marketing efforts, producing and editing reports, articles and hosting webinars on the latest policies and developments in the cryptoasset sector.

Ana started her career at the Gibraltar Financial Services Commission (GFSC) where she was part of the Authorisations team and then the International and Government Affairs team. As International Policy Advisor Ana liaised with regulators and public sector bodies and supported the GFSC’s membership and participation in international organisations. Whilst at the GFSC, Ana completed the Chartered Insurance Institute’s core qualification (CII) and IOSCO/PIFS-Harvard Law School’s Global Certificate Program for Regulators of Securities Markets.

David Mazzucchi

Senior Consultant

David Mazzucchi

As a Senior Consultant for XReg Consulting, David leads on client engagements for licensing and registration applications, independent audits and assists in the development of risk management frameworks. He also plays a pivotal role in the onboarding of prospective clients. While at XReg, he has worked with regulatory authorities to draft virtual asset rules and guidance and other public sector bodies to draft legislation. He also made a significant contribution to Crypto UK’s working group on virtual asset financial promotions.

David began his career at the Guernsey Financial Services Commission where he was responsible for the ongoing supervision and risk assessment of a portfolio of banks and insurance companies. He later joined the Commission’s Enforcement team, where he undertook investigations into potential regulatory breaches by licensed financial services companies and individuals. During his time at the Commission, David also worked with the Intelligence team, identifying and preventing fraudulent financial conduct.

Following his time at the GFSC, David joined EY Gibraltar as a Senior Consultant where he undertook a range of client consultancy work including internal audits and AML risk assessments, the development of policies and controls, and assistance with regulatory compliance. Whilst at EY, David completed a number of secondments to financial services firms and public sector bodies in Gibraltar.

Ernest Lima

Partner

Ernest Lima

Ernest is one of the founding Partners at XReg Consulting and a qualified lawyer with over 17 years of experience working in financial services regulation. As XReg’s legal and regulatory policy lead, he is highly experienced in the design, development and implementation of crypto legislative frameworks that meet both global and local policy objectives.

At XReg, Ernest leverages in-house expertise on Europe’s Markets in Crypto-assets (MiCA) Regulation to advise clients in Europe or those looking to enter the European market. He also leads engagement with European public sector officials and National Competent Authorities in their transition to MiCA compliance.

Ernest has also spoken at industry conferences and trained international regulatory authorities on Europe’s MiCA regulation and how it will shape the future of crypto’s international regulatory landscape. He also sits on the Financial Markets Law Committee to address issues arising from the use of cryptoassets and DLT.

Prior to XReg, he was the Head of Policy at the Gibraltar Financial Services Commission, where was instrumental in the design and implementation of the Distributed Ledger Technology regime. He also led and managed the Legislative Reform Program, the single largest financial services legislation reform in the jurisdiction, and worked to transpose several EU Directives into Gibraltar law.

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