Legal Status of Issuers of Crypto Assets in the Light of the Project of MICA Regulation

Abstract

In the developing world of modern digital technologies, the question arises of the need to adopt a uniform mechanism of the regulation of crypto-assets issuers, including a comprehensive regulation of the position of all entities involved in the trade in crypto-assets. However, we are currently examining the inconsistent and abstract regulation of the main crypto-assets traders resulting from Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU. Under pressure from policy makers and the professional public, the European Commission has presented a proposal for a longawaited Proposal for a Regulation of the European parliament and of the Council on Markets in Crypto-assets, and amending Directive (EU) 2019/1937, COM (2020) 593 final (MICA) to ensure common regulation of crypto-assets, which is applicable in all Member States of the European Union. The present proposal for a MICA regulation has the ambition to unify the fragmented legislation on crypto-assets that nowaday as a result of lack of wider regulation at EU level. The primary goal of this paper is to analyze newly defined concepts, including categorizations of crypto-assets falling under MICA. In this context, the basic aspects of the functioning of the crypto-assets issue process, including the obligation to publish a white paper, are examined. In particular, the position of the EBA (European Banking Authority) as a supervisory authority for issuers of significant crypto-assets is examined. Based on the analysis, the author comes to the conclusion that the application of the MICA may well be associated with a number of problems, which are then specified in more detail. We see ambiguity when applying MICA caused, for example, by rather general language of the terms defining crypto-assets, or by absence of further explanation of cooperation process between relevant EU and third country authorities. The several scientific methods were used in writing this paper, such as: comparison, analysis, synthesis, analogy, induction and deduction.