On 26 February 2025, ESMA published the official translations of its guidelines on the:
(i) procedures and policies in the context of transfer services for crypto-assets;
(ii) specification of EU standards for the maintenance of systems and security access protocols for offerors and persons seeking admission to trading of crypto-assets other than asset referenced tokens and e-money tokens; and
(iii) situations in which a third-country firm is deemed to solicit clients established or situated in the EU and the supervision practices to detect and prevent circumvention of the reverse solicitation exemption.
The guidelines on the procedures and policies in the context of transfer services for crypto-assets, apply to national competent authorities (NCAs) and to crypto-asset service providers (CASP) acting on behalf of clients within the meaning of Article 3(1)(26) of MiCA. Their objectives are to establish consistent, efficient and effective supervisory practices and to ensure the common, uniform and consistent application of the provisions in Article 82 of MiCA. In particular, they aim at providing more clarity on the requirements for CASP that provide transfer services for crypto-assets on behalf of clients and strengthening investor protection.
The purpose of the guidelines applicable to NCAs and to offerors and persons seeking admission to trading of crypto-assets other than asset referenced tokens and e-money tokens is to specify the appropriate EU standards for offerors and persons seeking admission to trading as regards the maintenance systems and security access protocols, including policies and procedures. They also aim to promote greater convergence in the interpretation and application of the MiCA provisions applicable to offerors and persons seeking admission to trading.
Finally, the guidelines regarding the solicitation of clients established or situated in the EU by third-country firms, and the supervision practices for the detection and prevention of the circumvention of the reverse solicitation exemption, are intended to provide clarity to NCAs and market participants, especially third-country firms, on the limited situations where the offer or provision of crypto-asset services to clients established or situated in the EU will be regarded as initiated at the own exclusive initiative of the relevant clients.
The guidelines apply from 27 April 2025 (that is, 60 calendar days after the date of publication of the official translations on ESMA’s website). It is worth noting that NCAs must notify ESMA whether i) they comply, ii) do not comply but intend to comply or iii) do not intend to comply with the guidelines. However, neither CASP nor offerors and persons seeking admission to trading are required to report whether they comply with the guidelines.
by Nuno da Silva Vieira, Practice Area – TMT, Digital Economy & Nuno Castelão, Practice Area – Banking, Finance and Capital Markets
