On 10 December 2024, there was published a letter from John Berrigan (Director General in the Directorate-General for Financial Stability, Financial Services and Capital Markets Union of the European Commission) to the European Banking Authority (EBA) and the European Securities and Markets Authority (ESMA). In the letter Mr Berrigan raises certain concerns regarding the overlap between crypto-asset services provided by crypto-asset service providers (CASPs) under the Regulation on markets in crypto-assets (MiCAR) and payment services regulated under the Payment Services Directive 2 (PSD2) particularly in the case of certain services relating to e-money tokens (EMTs).

No action letter

Having described these concerns in the letter Mr Berrigan then asks the EBA if it could explore the possibility of issuing an opinion pursuant to Article 9c of Regulation (EU) No 1093/2010 (no action letter), with regard to the enforcement of the requirements on authorisation in the PSD2 as regards services with EMTs provided by CASPs (or by entities benefiting from the transitional period under Article 143(3) of MiCAR) that may be inadvertently covered by the PSD2, e.g. where EMTs are not used as a means of payment or for peer-to-peer payment transactions, but rather for investment or trading purposes.

Mr Berrigan adds that the Commission services stands ready to support the EBA and ESMA in this work and that such a no action letter should take effect until the application date of the Payment Services Regulation (PSR) / transposition deadline of the PSD3 and should be reassessed three years after the no action letter is published in case the application date of the PSR / transposition deadline of the PSD3 will be later than 3 years after the publication of the no action letter.

Possible legislative changes

He also states that in instances where dual authorisation is nevertheless required under MiCAR and the PSD2, for example where EMTs are used as a means of payment for goods or services or for P2P payment transactions, the EBA and ESMA should explore whether the authorisation process under PSD2 could be streamlined to reduce the operational burden that institutions would face. He also welcomes suggestions as to potential legislative changes to address any of the issues identified in the letter that could be considered in the ongoing negotiations of the PSR/PSD3.

EBA response

The EBA has responded to Me Berrigan’s letter stating that it will assess the issues raised.