Response to consultation on Guidelines on templates to assist competent authorities in performing their supervisory duties regarding issuers’ compliance under MiCAR

Question 1: Do you have any comments on template U 05.01 on how issuers should report on their own funds requirements? Do you have any comments on template U 05.02 on how issuers should report on the composition of their available own funds?

We do not have comments to the templates U 05.01 and U 05.02 and how to report the available own funds. However, as also written in the presentation of EBA’s public hearing on September 20, 2024 (page 6), the guidelines should clearly provide information that these reporting requirements only apply to issuer of asset referenced-token (ARTs) and to issuer of significant e-money token (EMTs) but not to issuers of insignificant EMTs (if the competent authority does not require it). This is particularly important as in accordance with the Regulation (EU) 2023/1114 (MiCAR), the own fund requirements of issuers of insignificant EMTs are based on the Directive 2009/110/EG. The Directive 2009/110/EG does not account for own fund requirements based on fixed overhead. In the current version of the draft guidelines, due to the slightly ambiguous provisions of Section 4.1 Number 10 and Section 4.1 Number 11 letter b), it would be appreciated to clarify this aspect.

In addition, we would recommend including a clear guidance of to whom the reporting requirements are applicable in the index of the template of Annex I (applies to all templates and also the templates of Annex III).

Question 2: Do you have any comments on template U 06.00 on how issuers should report on their reserve of assets by maturity ladder?

We do not have comments to the template U 06.00 and the reporting of the reserves of assets. However, similar as for the previous questions, it would be highly appreciated to clearly outline also in the template to Annex I that these reporting requirements only apply to issuers of ARTs and to issuers of significant EMTs but not issuers of insignificant EMTs. Particularly, please note that the current version of Part VI Section XXIII number 35 of the Annex II to the draft guidelines currently outlines a reporting requirement also for issuers of insignificant EMTs which should be aligned with the communicated reporting requirements during the official EBA hearing and the provision of the guideline’s Section 4.1 Number 11.

Question 3: To note, templates U 03.01 and U 03.02 in these guidelines are the same templates as templates S 03.01 and S 03.02 in the draft ITS under Article 22(7) of MiCAR, only the tokens in scope of the reporting is different. Do you have any comments on the extension of the scope, compared to the draft ITS, to EMTs referencing to EU currencies for these templates on the composition of the reserve of assets with these guidelines?

We do not have comments to the templates U 03.01 and U 03.02. However, similar as for the previous questions, it would be highly appreciated to clearly outline also in the template to Annex I that these reporting requirements only apply to issuers of ARTs and to issuers of significant EMTs but not issuers of insignificant EMTs.

Question 4: Do you have any comments on templates U 07.01, U 07.02 and U 07.03 on how issuers should report information needed to assess the significance criteria as specified in Articles 43 and 56 of MiCAR?

We have the following comments to the templates U 07.01, U 07.02 and U 07.03:

• U 07.01
  • Row 0010: It would be appreciated if the data field would be renamed in a way directly showing that only token within the EU shall be reported.
  • Row 0010: As many ARTs and EMTs are created in a way that the token are freely transferable and due to the nature of the distributed ledger technology of not being subject to international borders, we are concerned of how to distinguish between token within the EU and token outside of the EU. In the absence of knowledge of the owners of non-custodial wallets, an issuer is not able to differentiate between a market capitalization within the EU and outside of the EU. In our opinion, issuers can only provide information to this row based on information provided by MiCAR regulated CASPs, however, this information might be only a little portion of all token in circulation.
  • Row 0020: It would be appreciated if the data field would be renamed in a way directly showing that only token outside the EU shall be reported.
  • Row 0020: Similar as for Row 0010, there will be only limited information available for issuers. For token outside the EU, even crypto service providers which however are not regulated by MiCAR are not required to deliver information to the issuers. 
  • Rows 0010 and 0020: Due to the limited information on the location of token, it would be appreciated if you could provide more guidance on how to proceed here in case of missing information. 
• U 07.02
  • Could you please clarify if the reporting shall be done based on the holding in the issuer or the ART / EMT. From our understanding the qualifying holders need to be the parties holding participations in the issuers. However, we do not understand how this information is relevant for a significance assessment. 
  • Furthermore, if the information is concerning the ARTs or EMTs and not the issuer itself, we do not fully understand the relevance for the significant assessment in accordance with Article 43 (1) MiCAR. We would assume the information is gathered due to letter f). It would be appreciated if you could confirm if this assumption is correct and if so, please provide more guidance on when holdings might lead to an “interconnectedness with the financial system”. 
• U 07.03
  • As already mentioned for U 07.01, due to the nature of the blockchain, it is not possible or issuers of ARTs or EMTs to know the location of owners of non-custodial wallets, if the ARTs or EMTs are freely transferable. Therefore, presumably in by far the most situations, the issuers do only know the transactions being reported by CASPs being regulated under MiCAR. 
  • Therefore, could you please give more guidance, if there are any requirements for issuers to report transactions for which the payer or the payee (or in most cases both) are unknown? In addition, could you please confirm that issuers do not have the responsibility to check the correctness of data provided by the CASPs and that issuers can rely on the data as provided.

Question 5: To note, templates U 01.00, U 02.00, U 04.01, U 04.02, U 04.03 and U 04.04 in these guidelines are the same templates as templates S 01.00, S 02.00, S 04.01, S 04.02, S 04.03 and S 04.04 in the draft ITS under Article 22(7) of MiCAR, only the tokens in scope of the reporting is different. Do you have any comments on the extension of the scope, compared to the draft ITS, to EMTs referencing to EU currencies for these templates related to number of holders; value of the token issued and size of the related reserve of assets; and information on transactions per day with these guidelines?

We have the following comments to the templates U 01.00, U 02.00, U 04.01, U 04.02 and U 04.03. We do not have comments to template U 04.04.

• U 01.00
  • As the template needs to be filled per country (and on a total level), please clarify how the template needs to be adjusted for the final reporting. For instance, shall there be a) a column per country, b) a whole table per country, or c) a whole excel spreadsheet per country.
  • Please note our comments to question 4 regarding the fact that it is operationally almost impossible for an issuer to know the location of an owner of a non-custodial wallet if the EMT is freely transferable. The same applies to the distinction of retail holders and other holders. Therefore, it would be appreciated if you could provide further guidance on how to proceed in such cases.
  • As the information of custodial wallets needs to be provided by CASPs, could you please confirm that issuers do not have the responsibility to check the correctness of data provided by the CASPs and that issuers can rely on the data as provided. 
  • For freely transferable EMTs, there will be many situations that the issuer of an EMT will not have a direct contractual relationship with potential CASPs offering the EMTs. From our understanding, it is the responsibility of the CASPs to provide the issuer with the required information upon offering the EMT even if there is no direct contractual relationship. Could you please give more guidance if our understanding is correct, and it is the sole obligation of the CASPs to provide the information and not of the issuer to receive the information as issuers might not even be aware of the fact that the EMTs are held with some CASPs as well as that issuers only have to report the information received by the CASPs. 
• U 02.00
  • Based on the presentation of the EBA hearing dated September 20, 2024 (page 7), the reporting requirements are only applicable to issuers of significant EMTs (if the competent authority does not require it). It, therefore, would be appreciated if this fact could also be clearly outlined in the guidelines.
• U 04.01
  • From our understanding if there are any transactions between two CASPs, the issuer will receive the same transaction from two sides. This will lead in our opinion to a double counting in transactions. Could you please give more guidance how to proceed in such a case.
  • In addition, please see our previous comments to template U 01.00 as well as question 4, especially regarding the presumably large portion of information not available to issuers. 
• U 04.02
  • Please see our comment to the double counting to U 04.01
  • In addition, please see our previous comments to template U 01.00 as well as question 4, especially regarding the presumably large portion of information not available to issuers.
• U 04.03
  • We have no comments to U 04.03 as we assume that issuers shall consider all wallet addresses not being confirmed by CASPs to be held by them as non-custodial wallet addresses.

Question 6: Do you have any comments on template U 09.04 on how CASPs should report to issuers the cross-border transactions that are associated as a means of exchange?

Regarding the reporting requirements in template U 09.04, we refer to our concerns regarding the unavailability of information for issuers as outlined in questions 4 and 5 and would appreciate more guidance on how to proceed if information is not available to the issuers.

Question 7: To note, CASPs templates U 08.00, U 09.01, U 09.02, U 09.03 and U 10.00 in these guidelines are the same templates as templates S 06.00, S 07.01, S 07.02, S 07.04 and S 08.00 in the draft ITS under Article 22(7) of MiCAR, only the tokens in scope of the reporting is different. Do you have any comments on the extension of the scope, compared to the draft ITS, to EMTs referencing to EU currencies for these templates related to information on holders; information on transactions; and information on token held by the CASPs with these guidelines?

We have the following comments to the templates U 09.01, U 09.03 and U 10.00. We do not have comments to templates U 09.02 and U 08.00.

• U 09.01
  • As the template needs to be filled per country, please clarify how the template needs to be adjusted for the final reporting. For instance, shall there be a) a column per country, b) a whole table per country or c) a whole excel spreadsheet per country.
  • In addition, please see our comments to questions 5 in regards to the double counting to U 04.01.
• U 09.03
  • Could you please clarify if the distributed ledger addresses reported in this template refer to the addresses of 
    • a) the CASPs own addresses, 
    • b) the non-custodial wallet addresses of holders from which the CASPs receives ARTs or EMTs, or to which addresses the CASPs transfers ARTs or EMTs, respectively, or 
    • c) or both of a) and b).
  • In our current understanding, the reporting requirements cover letter a). If however, letters b) or c) apply, it might be worthwhile to consider a way of combining the requirements of template U 08.00 with template U 10.00 in order to enable issuers of EMTs or ARTs to provide information as requested in other templates.
• U 10.00
  • Part I Section II Number 7 of Annex IV outlines a requirement of template U 10.00 being delivered on a daily basis. We do not see a requirement for an issuer to receive the information, nor an CASP to provide the information on a daily basis. In addition, in our opinion, a transmission on a daily basis will lead to a tremendous operational burden on both sides, for the CASP and for the issuer, especially as issuers will most likely receive information form several CASPs and the CASPs need to provide information to several issuers. Particularly on the issuers’ side, there will be a tremendous operational effort to consolidate all information provided by all CASPs on a daily basis and a tremendous amount of data to be stored. 
  • Therefore, we would recommend changing the reporting frequency to quarterly in line with the other information provided and either in a way that the information is provided for all days within the quarter or to a reporting on average level over the whole quarter. This will in our opinion serves the same purpose but decreases operational efforts and risks of operational errors tremendously.

Question 8: Do you have any other comments on the guidelines, the templates or instructions?

As already mentioned in the previous questions, we doubt that in many situations, issuers of EMTs and ARTs will be able to provide reasonable information for the reporting, especially for a distinction of different locations. Therefore, it would be appreciated to consider, if such a distinction is needed. In addition, we would recommend to clearly state in the guidelines as well as in the indexes of the templates which reporting requirements apply to which type of issuers (ARTs, insignificant EMTs, significant EMTs). 

Regarding Annex V, we would appreciate if you could provide more guidance on the fact that the supervisory authority expects the single data point model to be a developed solution or if the single data point model could also be based on the templates provided in form of a MS Excel spreadsheet.

Lastly, we would like to mention that even if we understand the necessity of the data to be collected in order to evaluate the significance of issuers, from our understanding, MiCAR Article 22 should only apply to issuers of ARTs and due to the provisions of MiCAR Article 58 (3) to issuers of EMTs denominated in a currency that is not an official currency of a Member State, but not for issuers of EMTs denominated in an official currency of Member State.

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