MiCA: a headache for the European regulator

Wednesday, July 12, 2023

While the European regulation on crypto-assets has been definitively adopted, its future application is already giving the European Securities and Markets Authority a few cold sweats. Esma will have to get all the national regulators to agree on the interpretation of the text. There are 27 of them!

For MEPs, the MiCA regulation is no longer an issue. The text, which creates a framework for crypto-assets in the European Union, was definitively adopted at the beginning of June. But for others, such as the European Securities and Markets Authority (ESMA), MiCA is a hot topic.

The Paris-based ESMA is responsible for ensuring that the text is translated and applied in practice throughout the 27 member countries of the European Union. "The aim is for companies in the sector to have the same answers regardless of which national authority they turn to", explains Natacha Cazenave, Director General of Esma.

MiCA was adopted to provide a framework for the crypto sector on a European scale. The text essentially provides for two main parts: the first concerns platforms, and the second stablecoins. In order to operate, platforms will have to receive authorisation from national regulators. This will be compulsory in 2026.

This authorisation will be conditional on the implementation of several things: internal controls, obligations in terms of the good repute of managers, specific arrangements for the segregation and safekeeping of assets.

The problem is that to be effective, MiCA must be interpreted in the same way everywhere. That's Esma's role. Except that this role is not a simple one. "It's a real issue. Not all states have the same reading of the texts," explains Franck Guiader, director of Gide 255, the entity dedicated to Web3 at the business law firm Gide.

The risk is that there could be a form of regulatory arbitrage with Web3 projects that would take advantage of the misalignment of national regulators. "Some countries have every interest in having an approach that is a tiny bit more flexible than their neighbours, which will make it easier to attract companies," explains an expert on the subject.

This analysis is not investment advice. It has been prepared without taking into account your personal situation, particularly your financial situation, risk profile, and investment objectives.

Before investing in any product, investors should fully understand the risks involved and consult their own legal, tax, financial, and accounting advisors.

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