On 29 September 2023, the European Banking Authority (EBA) published Technical Advice on two delegated acts that the European Commission (Commission) is mandated to develop under the Regulation on Markets in Crypto-Assets (MiCA). These include a delegated act on the most relevant indicators in relation to specific criteria for determining whether asset-referenced tokens (ARTs) and electronic money tokens (EMTs) are to be regarded as “significant”, and a delegated act to specify certain elements of the supervisory fees to be charged by the EBA to issuers of significant ARTs and EMTs. In December 2022, the Commission issued a Call for Advice to the EBA on matters relating to these delegated acts, the EBA was requested to deliver its advice by 30 September 2023.

Technical Advice on the criteria for the classification of ARTs and EMTs as significant

The EBA is responsible for carrying out assessments of significance of ARTs and EMTs and may classify them as significant where they meet the criteria set out in MiCA. The relevant quantitative and qualitative criteria that the EBA considers for classifying ARTs and EMTs as significant are set out in Article 43 MiCA. In its Technical Advice, the EBA describes indicators to inform an assessment of significance against the criteria; it proposes both core and ancillary indicators of significance for each concerned criterion. The core indicators seek to capture the most relevant elements of significance, the ancillary indicators are intended to enable assessment of additional aspects of ARTs / EMTs in the event an assessment against the core indicators is not determinative, and the outcome of the significance assessment should ultimately be subject to a holistic/collective assessment of core and ancillary indicators. In accordance with the MiCA mandate, the EBA sets out indicators for two sets of criteria:

  1. Indicators of circumstances under which ARTs and EMTs and their issuers can be considered as interconnected with the financial system.

The EBA proposes the following core indicators:

  • Share of non-deposit reserve assets that are financial instruments issued by financial institutions.
  • Share of ART/EMT issuer’s asset holdings relative to total supply of specific financial instruments (e.g. units of a UCITS, sovereign bonds).
  • Share of ART/EMTs issued that are held by financial institutions (when data becomes available).

The proposed ancillary indicators include:

  • Ownership structure of the issuer of an ART or EMT.
  • Concentration of [custody of] an ART or EMT issuer’s reserve assets.
  • Portfolio overlap of reserve assets with other ART/EMT issuers.
  1. Indicators of circumstances under which the activities of the issuer of ARTs and EMTs are considered to be significant on an international scale, including the use of the ART/EMT for payments and remittances

The EBA proposes the following core indicators:

  • Market share of value of cross-border transactions with ARTs/EMTs into and from the EU.
  • Market share of cross-border transactions into and from the EU with an ART or EMT that are associated as means of exchange.

The proposed ancillary indicator includes:

  • Ratio of the total value of cross-border transactions with an ART or EMT used as means of exchange as compared to total value of cross-border payment transactions into and from the EU.

In addition, the EBA identifies gaps in reporting obligations for issuers of ARTs and EMTs under MiCA. In the EBA’s view, these gaps could limit the EBA’s ability to assess tokens against the criteria to which the EBA’s advice relates, but also limit the EBA’s overall ability to assess tokens against the other criteria specified in MiCA. The EBA anticipates developing guidelines to address the identified gaps and plans to start working on these in Q1 2024.

Technical Advice on supervisory fees for ARTs and EMTs

MiCA provides that that the EBA shall charge fees to issuers of significant ARTs and EMTs in relation to all costs incurred in connection with its supervisory tasks as well as the reimbursement of costs that Member State competent authorities may incur carrying out work under MICA. The EBA is of the view that yearly adaptable fees calculated through a fully proportionate approach should be used to calculate the fees payable under MiCA, and sets out a proposed methodology.

The Commission is expected take into account the EBA’s advice when developing its draft delegated acts.