In September we published a blog setting out 10 key things that firms needed to know about the draft regulation on markets in crypto-assets (MiCA). We have since published an update on what’s been happening and as we continue our close monitoring of the key developments regarding the MiCA review, in this blog we provide an overview of the key takeaways from a subsequent Council working group meeting that took place on 24 November 2020.
The most recent meeting of the Member States representatives was focused on discussing the specific provision of Title VII (Competent authorities), VIII (Delegated acts and implementing acts) and IX (Transitional and final provisions). In advance of the meeting the Presidency circulated a note to Member States, broadly setting out the key issues for discussion which included:
- Competent authorities powers and cooperation with ESMA, EBA: majority of Member States appear to endorse the proposed approach but some suggested extension of powers conferred upon national competent authorities (NCAs) and aligning it with the powers under MAR and MiFID. Suggestions were also made to provide further clarifications regarding home/host state arrangements. The Presidency therefore sought views, among other, whether the NCAs supervisory powers should be further strengthen.
- Administrative measures and sanctions: suggestions were made to align the MiCA provisions with those under MAR, and provide further specification between intentional and unintentional infringement. The Presidency sought views whether any such clarifications should be provided in the amended MiCA.
- EBA and issuers of significant asset-referenced tokens and significant e-money tokens: some Member States questioned the appropriateness of conveying supervisory powers in respect of the issuers of significant asset-referenced tokens and significant e-money tokens to the EBA, and suggested that the better solution would involve some sort of shared competences between the EBA and NCAs. The Presidency therefore asked for further views as to who should be responsible for supervision of such issuers.
- EBA and issuers of asset-referenced tokens and e-money tokens: consistent with their approach as mentioned above, some Member States questioned the appropriateness of conferring powers to the EBA in respect of the issuers of asset referenced tokens and e-money tokens (non-significant). However, other Member States see benefits of strengthening the EBA’s powers in that respect, including with regard to cooperation with third-country authorities. The Presidency therefore sought views on, among other, clarification of college processes and scope of cooperation with third-country authorities.
- Delegated acts and implementing acts: some Member States noted that MiCA does not provide for development of Level 2 measures in respect of the supervision of crypto-asset service providers, and that some guidance might be helpful in that respect. The Presidency asked for views whether any such Level 2 measures should be developed.
- Transitional and final provisions: The Presidency was interested in Member States views whether any of the timeframes – including MiCA’s entry into force and grandfathering provisions for the crypto-asset service providers – should be extended from 18 to 24 months.
If you would like to discuss any aspects of the MiCA legislative review please do not hesitate to get in touch: anna.carrier@nortonrosefulbright.com
