Consultation on information for assessment of a proposed acquisition of qualifying holdings in issuers of ARTs under MiCAR

The European Banking Authority (EBA) today consulted on two sets of draft regulatory technical standards (RTS) and one set of implementing technical standards (ITS) relating to the authorisation as issuer of asset-referenced tokens (ARTs) and the assessment of acquisition of qualifying holdings in issuers of ARTs under the Markets in Crypto-assets Regulation (MiCAR). With these technical standards, the EBA aims to regulate access to the EU market of ARTs by applicant issuers and persons intending to exercise significant influence on these undertakings via the acquisition of qualifying holdings.

Under MiCAR, the offer to the public or the admission to the trading of an ART is reserved to legal persons or other undertakings established in the EU subject to the authorisation and approval of the publication of a white paper. The draft RTS on information for authorisation lay down the information requirements to be included when applying for such an authorisation. The information requirements cover the business model, internal governance, including ICT risk management, liquidity, reserve of assets, sufficiently good repute of the members of the management body and of shareholders with qualifying holdings.

The draft ITS set out the standard application letter, the application template and clarify the process relating to the assessment of completeness of the application by the competent authority. As credit institutions are only required to receive approval to publish a white paper, the draft RTS and ITS do not apply to credit institutions. 

Consistent with the general regime applicable in the financial sector, MiCAR envisages a prudential assessment by competent authorities for the acquisition of qualifying holdings in issuers of ARTs that are not credit institutions. The draft RTS on the detailed content of the information to be included in the notification for of the proposed acquisition clarify the information requirements that are necessary for such an assessment.

This information covers five criteria relating to (a) the reputation of the proposed acquirer, (b) the suitability of any person who will direct the target undertaking, (c) the financial soundness of the proposed acquirer, (d) the sound and prudent management of the target undertaking following the acquisition and (e) suspicion that money laundering of terrorist financing is committed or attempted or that it may increase following the acquisition.

Consultation process

Comments to the consultation paper can be sent by clicking on the "send your comments" button on the EBA's consultation page. The deadline for the submission of comments is 12 October 2023. 

The EBA will hold a virtual public hearing on the consultation paper on 21 September 2023 from 11:30 to 13:30 CEST. The EBA invites interested stakeholders to register using this link by 19 September 2023 at 16:00 CEST.  The dial-in details will be communicated to those who have registered for the meeting.

All contributions received will be published following the end of the consultation, unless requested otherwise. 

The scope of the consultation, and of the consultation questions, is limited to the amendments and additions.

Legal basis

The EBA has developed the draft RTS on information for authorisation in accordance with Article 18(7) of MiCAR and in close cooperation with the European Securities and Markets Authority (ESMA) and the European Central Bank (ECB). The draft ITS on standard forms, templates and procedures for the information to be included in the application has been developed by the EBA in accordance with Article 18(6) of MiCAR and in close cooperation with ESMA.

The draft RTS on the detailed content of the information that is necessary to carry out the assessment for the acquisitions of qualifying holdings in ART issuers has been developed in accordance with Article 42(4) of MiCAR and in close cooperation with ESMA.

Background

Regulation (EU) 2023/1114 on Markets in Crypto-assets establishes a regime for the regulation and supervision of crypto-asset issuance and crypto-asset service provision in the European Union (EU). It came into force on 29 June 2023, and the provisions relating to ARTs will be applicable from 30 June 2024.

Among the activities within the scope of MiCAR are the activities of offering to the public or seeking admission to trading of ARTs and electronic money tokens (EMTs) and issuing such tokens. Supervision tasks are conferred on the EBA for ARTs and EMTs that are determined by the EBA to be significant. Additionally, the EBA is mandated to develop 17 technical standards and guidelines under MiCAR to further specify the requirements for ARTs and EMTs, and an additional 3 mandates jointly with ESMA (and, in one case, also with EIOPA).

The consultation papers on authorisations and qualifying holdings relate only to ARTs and are published on the same date as a consultation paper on complaints handling.