Response to consultation on Guidelines on templates for explanations and opinions, and the standardised test for the classification of crypto-assets under MiCAR
1. Do respondents have any comments on the template for the purposes of Article 8(4) Regulation (EU) 2023/1114?
The template seems sufficiently comprehensive, although it is based on sources of law that do not yet exist (such as the case law of the European Court of Justice and national courts). Moreover, market developments are continuous, and templates must therefore be adapted to accommodate novelties in a timely manner.
2. Do respondents have any comments on the template for the purposes of Article 17(1) point (b)(ii) and Article 18(2) point (e) of Regulation (EU) 2023/1114?
The same that was stated in the answer to the first question applies.
3. Do you consider that the fields of the template relating to explanations as to regulatory status are sufficiently clear and would enable a proportionate completion in line with the simplicity or complexity of the structure of the crypto-asset to which the explanation or legal opinion relates?
The articulation is significant and the Guidelines sufficiently comprehensive. According to the Guidelines, any instruments that will be issued in the future will have to undergo these checks. One wonders how this will this relate to what already exists on the market and is not regulated and if there is a timeframe within which these assessments or certifications will have to be made. In our view, market developments and regulatory intervention need to be reconciled and existing instruments and regulations need to be linked.
4. Do respondents have any comments on the standardised test?
We point out that there is a possibility that issuers may act with a certain freedom if the circulation of CA is contained within them, as in that case they are not subject to specific controls. It should be noted that on the one hand regulation defines ‘traditional’ instruments, and on the other hand instruments exclusively based on technological application: in between there may be hybrid situations (according to the legislator itself). It is unclear whether the regulation in question also intends to include such hybrid situations in the regulatory meshwork or wants to treat them as such, thus bringing out ‘grey’ areas where bad, naturally creative finance could creep in. We expect the authorities to make up for the lack of rules on grey areas with new regulation. Finally, we point out what appears to us to be a typo in the flowchart to Annex C of the guidelines: from the rhombus where it is asked whether the CA refers to the value of a single official currency - the middle of the bottom three - two arrows erroneously start out, both referring to an affirmative answer. The rightmost arrow should instead refer to the negative answer.