Key Highlights
- ESMA issued an opinion on crypto-asset services involving non-MiCA-compliant asset-referenced tokens and e-money tokens.
- CASPs authorized under MiCA should cease providing services related to such stablecoins to EU clients.
- The guidance covers trading, exchanges, order execution, transfers, custody, advice, and portfolio management.
The European Securities and Markets Authority (ESMA) has issued an opinion stating that crypto-asset service providers (CASPs) should not offer services related to asset-referenced tokens (ARTs) or e-money tokens (EMTs) that fail to meet the requirements of the Markets in Crypto-Assets Regulation (MiCA). National competent authorities are expected to require remediation as soon as possible and no later than three months after the opinion’s publication.
According to the official release published on October 8, the opinion addresses the continued provision of crypto-asset services involving non-MiCA-compliant ARTs and EMTs. ESMA stated that such services expose clients to risks arising from the absence of issuer-level safeguards required under Titles III and IV of MiCA. These risks, according to the authority, cannot be adequately identified, managed, or mitigated by service providers themselves.
Scope of the opinion
ESMA considers the provision of any MiCA service involving non-compliant ARTs or EMTs incompatible with the obligation under Article 66(1) for service providers to act honestly, fairly, and professionally in the best interests of clients. The position applies regardless of whether the individual service constitutes an offer to the public or an admission to trading under Articles 16(1) or 48(1).
The services covered include the operation of trading platforms, exchange services, execution of orders, reception and transmission of orders, placing of crypto-assets, advice, transfer services, custody, and portfolio management.
Service providers are expected to implement technical, contractual, and organizational controls to prevent European Union clients from acquiring or increasing positions in non-compliant tokens.
Rationale provided by ESMA
ESMA stated that allowing non-compliant ARTs and EMTs to remain available through authorized service providers would undermine the effectiveness of MiCA. It would enable circumvention of issuer requirements, create an uneven playing field between compliant and non-compliant issuers, and deprive investors of the consistent level of protection, transparency, and supervisory oversight established by the regulation.
ESMA further stated that warnings, disclosures, or client acknowledgements would not sufficiently address these concerns. The protections under Titles III and IV operate collectively to mitigate a range of risks. Relying on clients to access the absence of those safeguards, or relying on service-provider assessments communicated through disclosures, is considered unlikely to enable accurate risk assessment.
The continued availability of non-compliant tokens would also hinder national authorities’ ability to enforce white-paper requirements, marketing communications, and monitoring of trading practices.
Limited residual services and supervisory expectations
The opinion allows national competent authorities to permit strictly limited residual services where necessary to ensure an orderly wind-down and avoid client detriment. Such services are restricted to the liquidation, conversion, withdrawal, transfer, or safekeeping of existing holdings.
They must not facilitate new acquisitions, promotions, trading, active distribution, or continued market availability. Any residual arrangements are to be time-limited, clearly communicated to clients, and subject to close supervisory scrutiny.
National competent authorities are expected to assess whether authorized service providers in their jurisdictions are providing services related to non-MiCA-compliant ARTs or EMTs or are facilitating the availability of such tokens to Union clients.
Where legacy exposures remain, remediation is required as soon as possible and no later than three months from the date of the opinion’s publication. Continuation of services is to be limited to sell-only, conversion, transfer, or withdrawal functionalities necessary to avoid client detriment and must remain time-limited, risk-based, and closely supervised.
ESMA stated it will regularly monitor the application of the opinion in cooperation with the national authorities.
Related regulatory context
Separately, ESMA has proposed broader changes to MiCA as part of the European Commission’s review of the framework. Those proposals include stricter rules on crypto-asset marketing, particularly involving influencers and third parties; clearer pre-contractual information on fees, risks, rewards, collateral, and potential losses; and more precise requirements for staking, lending, and borrowing activities.
The authority has also called for enhanced supervisory tools to identify, block, and shut down fraudulent websites and freeze crypto assets in cases of suspected market abuse or terrorist financing.
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