Legal provisions of COM(2020)593 - Markets in Crypto-assets - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)593 - Markets in Crypto-assets. |
|---|---|
| document | COM(2020)593  |
| date | May 31, 2023 |
Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019, p. 17).
48
TITLE I Subject Matter, Scope and Definitions
Article 1
Subject matter
This Regulation lays down uniform rules for the following:
(a) transparency and disclosure requirements for the issuance and admission to trading of crypto-assets;
(b) the authorisation and supervision of crypto-asset service providers and issuers of asset-referenced tokens and issuers of electronic money tokens;
(c) the operation, organisation and governance of issuers of asset-referenced tokens, issuers of electronic money tokens and crypto-asset service providers;
(d) consumer protection rules for the issuance, trading, exchange and custody of crypto-assets;
(e) measures to prevent market abuse to ensure the integrity of crypto-asset markets.
Article 2
Scope
1. This Regulation applies to persons that are engaged in the issuance of crypto-assets or provide services related to crypto-assets in the Union.
2. However, this Regulation does not apply to crypto-assets that qualify as:
(a) financial instruments as defined in Article 4(1), point (15), of Directive 2014/65/EU;
(b) electronic money as defined in Article 2, point (2), of Directive 2009/110/EC, except where they qualify as electronic money tokens under this Regulation;
(c) deposits as defined in Article 2(1), point (3), of Directive 2014/49/EU European Parliament and of the Council49;
(d) structured deposits as defined in Article 4(1), point (43), of Directive 2014/65/EU;
(e) securitisation as defined in Article 2, point (1), of Regulation (EU) 2017/2402 of the European Parliament and of the Council50.
3. This Regulation does not apply to the following entities and persons:
(a) the European Central Bank, national central banks of the Member States when acting in their capacity as monetary authority or other public authorities;
(b) insurance undertakings or undertakings carrying out the reinsurance and retrocession activities as defined in Directive 2009/138/EC of the European
Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ L 173, 12.6.2014, p. 149).
Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation, and amending Directives 2009/65/EC, 2009/138/EC and 2011/61/EU and Regulations (EC) No 1060/2009 and (EU) No 648/2012 (OJ L 347, 28.12.2017, p. 35).
49
50
4.
5.
6.
(c) (d)
(e) (f)
(g)
Parliament and of the Council51 when carrying out the activities referred to in that Directive;
a liquidator or an administrator acting in the course of an insolvency procedure, except for the purpose of Article 42;
persons who provide crypto-asset services exclusively for their parent companies, for their subsidiaries or for other subsidiaries of their parent companies;
the European investment bank;
the European Financial Stability Facility Mechanism;
and the
European Stability
public international organisations.
Where issuing asset-referenced tokens, including significant asset-referenced tokens, credit institutions authorised under Directive 2013/36/EU shall not be subject to:
(a) the provisions of chapter I of Title III, except Articles 21 and 22;
(b) Article 31.
Where providing one or more crypto-asset services, credit institutions authorised under Directive 2013/36/EU shall not be subject to the provisions of chapter I of Title V, except Articles 57 and 58.
Investment firms authorised under Directive 2014/65/EU shall not be subject to the provisions of chapter I of Title V, except Articles 57, 58, 60 and 61, where they only provide one or several crypto-asset services equivalent to the investment services and activities for which they are authorised under Directive 2014/65/EU. For that purpose:
(a) the crypto-asset services defined in Article 3(1), point (11), of this Regulation are deemed to be equivalent to the investment activities referred to in points (8) and (9) of Section A of Annex I to Directive 2014/65/EU;
(b) the crypto-asset services defined in Article 3(1), points (12) and (13), of this Regulation are deemed to be equivalent to the investment services referred to in point (3) of Section A of Annex I to Directive 2014/65/EU;
(c) the crypto-asset services defined in Article 3(1), point (14), of this Regulation are deemed to be equivalent to the investment services referred to in point (2) of Section A of Annex I to Directive 2014/65/EU;
(d) the crypto-asset services defined in Article 3(1), point (15), of this Regulation are deemed to be equivalent to the investment services referred to in points (6) and (7) of Section A of Annex I to Directive 2014/65/EU;
(e)
the crypto-asset services defined in Article 3(1), point (16), of this Regulation are deemed to be equivalent to the investment services referred to in point (1) of Section A of Annex I to Directive 2014/65/EU.
Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335,
17.12.2009,
1 .
5
p.
(f) the crypto-asset services defined in Article 3(1), point (17), of this Regulation
are deemed to be equivalent to the investment services referred to in points (5)
of
Section A of Annex I to Directive 2014/65/EU.
Article 3
Definitions
1. For the purposes of this Regulation, the following definitions apply:
(1) ‘distributed ledger technology’ or ‘DLT’ means a type of technology that support the distributed recording of encrypted data;
(2) ‘crypto-asset’ means a digital representation of value or rights which may be transferred and stored electronically, using distributed ledger technology or similar technology;
(3) ‘asset-referenced token’ means a type of crypto-asset
that purports to maintain
a stable value by referring to the value of several fiat currencies that are legal tender, one or several commodities or one or several crypto-assets, or a combination of such assets;
(4) ‘electronic money token’ or ‘e-money token’ means a type of crypto-asset the main purpose of which is to be used as a means of exchange and that purports to maintain a stable value by referring to the value of a fiat currency that is legal tender;
(5) ‘utility token’ means a type of crypto-asset which is intended to provide digital access to a good or service, available on DLT, and is only accepted by the issuer of that token;
(6) ‘issuer of crypto-assets’ means a legal person who offers to the public any type of crypto-assets or seeks the admission of such crypto-assets to a trading platform for crypto-assets;
(7) ‘offer to the public’ means an offer to third parties to acquire a crypto-asset in exchange for fiat currency or other crypto-assets;
(8) ‘crypto-asset service provider’ means any person whose occupation or business is the provision of one or more crypto-asset services to third parties on a professional basis;
(9) ‘crypto-asset service’ means any of the services and activities listed below relating to any crypto-asset:
(a) the custody and administration of crypto-assets on behalf of third parties;
(b) the operation of a trading platform for crypto-assets;
(c) the exchange of crypto-assets for fiat currency that is legal tender;
(d) the exchange of crypto-assets for other crypto-assets;
(e) the execution of orders for crypto-assets on behalf of third parties;
(f) placing of crypto-assets;
(g) the reception and transmission of orders for crypto-assets on behalf of third parties
(h)
providing advice on crypto-assets;
(10) ‘the custody and administration of crypto-assets on behalf of third parties’ means safekeeping or controlling, on behalf of third parties, crypto-assets or the means of access to such crypto-assets, where applicable in the form of private cryptographic keys;
(11) ‘the operation of a trading platform for crypto-assets’ means managing one or more trading platforms for crypto-assets, within which multiple third-party buying and selling interests for crypto-assets can interact in a manner that results in a contract, either by exchanging one crypto-asset for another or a crypto-asset for fiat currency that is legal tender;
(12) ‘the exchange of crypto-assets for fiat currency’ means concluding purchase or sale contracts concerning crypto-assets with third parties against fiat currency that is legal tender by using proprietary capital;
(13) ‘the exchange of crypto-assets for other crypto-assets’ means concluding purchase or sale contracts concerning crypto-assets with third parties against other crypto-assets by using proprietary capital;
(14) ‘the execution of orders for crypto-assets on behalf of third parties’ means concluding agreements to buy or to sell one or more crypto-assets or to subscribe for one or more crypto-assets on behalf of third parties;
(15) ‘placing of crypto-assets’ means the marketing of newly-issued crypto-assets or of crypto-assets that are already issued but that are not admitted to trading on a trading platform for crypto-assets, to specified purchasers and which does not involve an offer to the public or an offer to existing holders of the issuer’s crypto-assets;
(16) ‘the reception and transmission of orders for crypto-assets on behalf of third parties’ means the reception from a person of an order to buy or to sell one or more crypto-assets or to subscribe for one or more crypto-assets and the transmission of that order to a third party for execution;
(17) ‘providing advice on crypto-assets’ means offering, giving or agreeing to give personalised or specific recommendations to a third party, either at the third party’s request or on the initiative of the crypto-asset service provider providing the advice, concerning the acquisition or the sale of one or more crypto-assets, or the use of crypto-asset services;
(18) ‘management body’ means the body of an issuer of crypto-assets, or of a crypto-asset provider, which is appointed in accordance with national law, and which is empowered to set the entity’s strategy, objectives, the overall direction and which oversees and monitors management decision-making and which includes persons who direct the business of the entity;
(19) ‘credit institution’ means a credit institution as defined in Article 4(1), point (1), of Regulation (EU) No 575/2013;
(20) ‘qualified investors’ means ‘qualified investors’ as defined in Article 2, point (e), of Regulation (EU) 2017/1129;
(21) ‘reserve assets’ means the basket of fiat currencies that are legal tender, commodities or crypto-assets, backing the value of an asset-referenced tokens, or the investment of such assets;
(22) ‘home Member State’ means:
(a)
(b)
(c)
(d) (e)
(f)
where the issuer of crypto-assets, other than asset-referenced tokens or electronic money tokens, has its registered office or a branch in the Union, the Member State where the issuer of crypto-assets has its registered office or a branch;
where the issuer of crypto-assets, other than asset-referenced tokens or electronic money tokens, has no registered office in the Union but has two or more branches in the Union, the Member State chosen by the issuer among those Member States where the issuer has branches;
where the issuer of crypto-assets, other than asset-referenced tokens or electronic money tokens, is established in a third country and has no branch in the Union, at the choice of that issuer, either the Member State where the crypto-assets are intended to be offered to the public for the first time or the Member State where the first application for admission to trading on a trading platform for crypto-assets is made;
for issuer of asset-referenced tokens, the Member State where the issuer of asset-referenced tokens has its registered office;
for issuers of electronic money tokens, the Member States where the issuer of electronic money tokens is authorised as a credit institution under Directive 2013/36/EU or as a e-money institution under Directive 2009/110/EC;
for crypto-asset service providers, the Member State where the crypto-asset service provider has its registered office;
(23) ‘host Member State’ means the Member State where an issuer of crypto-assets has made an offer of crypto-assets to the public or is seeking admission to trading on a trading platform for crypto-assets, or where crypto-asset service provider provides crypto-asset services, when different from the home Member State;
(24) ‘competent authority’ means:
(a) the authority, designated by each Member State in accordance with Article 81 for issuers of crypto-assets, issuers of asset-referenced tokens and crypto-asset service providers;
(b) the authority, designated by each Member State, for the application of Directive 2009/110/EC for issuers of e-money tokens;
(25) ‘commodity’ means ‘commodity’ under Article 2(6) of Commission Delegated Regulation (EU) 2017/56552;
(26) ‘qualifying holding’ means any direct or indirect holding in an issuer of asset-referenced tokens or in a crypto-asset service provider which represents at least 10% of the capital or the voting rights, as set out in Articles 9 and 10 of Directive 2004/109/EC of the European Parliament and of the Council53, taking
Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive (OJ L 87, 31.3.2017, p. 1).
Directive 2004/109/EC
European Parliament
and of the
Council of 15 December 2004
harmonisation of transparency requirements in relation to information about issuers whose securities are
52
53
of the
on the
into account the conditions regarding aggregation thereof laid down in paragraphs 4 and 5 of Article 12 of that Directive, or which makes it possible to exercise a significant influence over the management of the investment firm in which that holding subsists.
(27) ‘inside information’ means any information of a precise nature that has not been made public, relating, directly or indirectly, to one or more issuers of crypto-assets or to one or more crypto-assets, and which, if it was made public, would be likely to have a significant effect on the prices of those crypto-assets;
(28) ‘consumer’ means any natural person who is acting for purposes which are outside his trade, business, craft or profession.
2. The Commission is empowered to adopt delegated acts in accordance with Article
121 to specify technical elements of the definitions laid down in paragraph 1, and to adjust those definitions to market developments and technological developments.
admitted to trading on a regulated market and amending Directive 2001/34/EC (OJ L 390, 31.12.2004, p. 38).
TITLE II Crypto-Assets, other than asset-referenced tokens or e-money tokens
Article 4
Offers of crypto-assets, other than asset-referenced tokens or e-money tokens, to the public, and admission of such crypto-assets to trading on a trading platform for crypto-assets
1.
2.
No issuer of crypto-assets, other than asset-referenced tokens or e-money tokens, shall, in the Union, offer such crypto-assets to the public, or seek an admission of such crypto-assets to trading on a trading platform for crypto-assets, unless that issuer:
(a) (b)
is a legal entity;
has drafted a crypto-asset white paper in respect of those crypto-assets in accordance with Article 5;
(c) has notified that crypto-asset white paper in accordance with Article 7;
(d) has published the crypto-asset white paper in accordance with Article 8;
(e) complies with the requirements laid down in Article 13. Paragraph 1, points (b) to (d) shall not apply where:
(a) the crypto-assets are offered for free;
(b) the crypto-assets are automatically created through mining as a reward for the maintenance of the DLT or the validation of transactions;
(c) the crypto-assets are unique and not fungible with other crypto-assets;
(d) the crypto-assets are offered to fewer than 150 natural or legal persons per Member State where such persons are acting on their own account;
(e) over a period of 12 months, the total consideration of an offer to the public of crypto-assets in the Union does not exceed EUR 1 000 000, or the equivalent amount in another currency or in crypto-assets;
(f) the offer to the public of the crypto-assets is solely addressed to qualified investors and the crypto-assets can only be held by such qualified investors.
For the purpose of point (a), crypto-assets shall not be considered to be offered for free where purchasers are required to provide or to undertake to provide personal data to the issuer in exchange for those crypto-assets, or where the issuer of those crypto-assets receives from the prospective holders of those crypto-assets any third party fees, commissions, monetary benefits or non-monetary benefits in exchange for those crypto-assets.
3. Where the offer to the public of crypto-assets, other than asset-referenced tokens or
e-money tokens, concerns utility tokens for a service that is not yet in operation, the duration of the public offer as described in the crypto-asset white paper shall not exceed 12 months.
1.
2.
3.
4.
5.
Article 5
Content and form of the crypto-asset white paper
The crypto-asset white paper referred to in Article 4(1), point (b), shall contain all the following information:
(a) a detailed description of the issuer and a presentation of the main participants involved in the project's design and development;
(b) a detailed description of the issuer’s project, the type of crypto-asset that will be offered to the public or for which admission to trading is sought, the reasons why the crypto-assets will be offered to the public or why admission to trading is sought and the planned use of the fiat currency or other crypto-assets collected via the offer to the public;
(c) a detailed description of the characteristics of the offer to the public, in particular the number of crypto-assets that will be issued or for which admission to trading is sought, the issue price of the crypto-assets and the subscription terms and conditions;
(d) a detailed description of the rights and obligations attached to the crypto-assets and the procedures and conditions for exercising those rights;
(e) information on the underlying technology and standards applied by the issuer of the crypto-assets allowing for the holding, storing and transfer of those crypto-assets;
(f) a detailed description of the risks relating to the issuer of the crypto-assets, the crypto-assets, the offer to the public of the crypto-asset and the implementation of the project;
(g) the disclosure items specified in Annex I.
All information referred to in paragraph 1 shall be fair, clear and not misleading. The crypto-asset white paper shall not contain material omissions and shall be presented in a concise and comprehensible form.
The crypto-asset white paper shall contain the following statement: “The issuer of the crypto-assets is solely responsible for the content of this crypto-asset white paper. This crypto-asset white paper has not been reviewed or approved by any competent authority in any Member State of the European Union”.
The crypto-asset white paper shall not contain any assertions on the future value of the crypto-assets, other than the statement referred to in paragraph 5, unless the issuer of those crypto-assets can guarantee such future value.
The crypto-asset white paper shall contain a clear and unambiguous statement that:
(a) (b) (c) (d)
the crypto-assets may lose their value in part or in full; the crypto-assets may not always be transferable; the crypto-assets may not be liquid;
6.
where the offer to the public concerns utility tokens, that such utility tokens may not be exchangeable against the good or service promised in the crypto-asset white paper, especially in case of failure or discontinuation of the project.
Every crypto-asset white paper shall contain a statement from the management body of the issuer of the crypto-assets. That statement shall confirm that the crypto-asset
white paper complies with the requirements of this Title and that, to the best knowledge of the management body, the information presented in the crypto-asset white paper is correct and that there is no significant omission.
7. The crypto-asset white paper shall contain a summary which shall in brief and nontechnical language provide key information about the offer to the public of the crypto-assets or about the intended admission of crypto-assets to trading on a trading platform for crypto-assets, and in particular about the essential elements of the crypto-assets concerned. The format and content of the summary of the crypto-asset white paper shall provide, in conjunction with the crypto-asset white paper, appropriate information about essential elements of the crypto-assets concerned in order to help potential purchasers of the crypto-assets to make an informed decision. The summary shall contain a warning that:
(a) it should be read as an introduction to the crypto-asset white paper;
(b) the prospective purchaser should base any decision to purchase a crypto-asset on the content of the whole crypto-asset white paper;
(c) the offer to the public of crypto-assets does not constitute an offer or solicitation to sell financial instruments and that any such offer or solicitation to sell financial instruments can be made only by means of a prospectus or other offering documents pursuant to national laws;
(d) the crypto-asset white paper does not constitute a prospectus as referred to in Regulation (EU) 2017/1129 or another offering document pursuant to Union legislation or national laws.
8. Every crypto-asset white paper shall be dated.
9. The crypto-asset white paper shall be drawn up in at least one of the official languages of the home Member State or in a language customary in the sphere of international finance.
10. The crypto-asset white paper shall be made available in machine readable formats.
11. ESMA, after consultation of the EBA, shall develop draft implementing technical standards to establish standard forms, formats and templates for the purposes of paragraph 10.
ESMA shall submit those draft implementing technical standards to the Commission by [please insert date 12 months after entry into force].
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
Article 6
Marketing communications
Any marketing communications relating to an offer to the public of crypto-assets, other than asset-referenced tokens or e-money tokens, or to the admission of such crypto-assets to trading on a trading platform for crypto-assets, shall comply with all of the following:
(a) the marketing communications shall be clearly identifiable as such;
(b) the information in the marketing communications shall be fair, clear and not misleading;
(c) the information in the marketing communications shall be consistent with the information in the crypto-asset white paper, where such a crypto-asset white paper is required in accordance with Article 4;
(d) the marketing communications shall clearly state that a crypto-asset white paper has been published and indicate the address of the website of the issuer of the crypto-assets concerned.
Article 7
Notification of the crypto-asset white paper, and, where applicable, of the marketing
communications
1. Competent authorities shall not require an ex ante approval of a crypto-asset white paper, nor of any marketing communications relating to it before their publication.
2. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, shall notify their crypto-asset white paper, and, in case of marketing communications as referred to in Article 6, such marketing communications, to the competent authority of their home Member State at least 20 working days before publication of the crypto-asset white paper. That competent authority may exercise the powers laid down in Article 82(1).
3. The notification of the crypto-asset white paper shall explain why the crypto-asset described in the crypto-asset white paper is not to be considered:
(a) a financial instrument as defined in Article 4(1), point (15), of Directive 2014/65/EU;
(b) electronic money as defined in in Article 2, point 2, of Directive 2009/110/EC;
(c) a deposit as defined in Article 2(1), point (3), of Directive 2014/49/EU;
(d) a structured deposit as defined in Article 4(1), point (43), of Directive 2014/65/EU.
4. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, shall, together with the notification referred to in paragraphs 2 and 3, provide the competent authority of their home Member State with a list of host Member States, if any, where they intend to offer their crypto-assets to the public or intend to seek admission to trading on a trading platform for crypto-assets. They shall also inform their home Member State of the starting date of the intended offer to the public or intended admission to trading on such a trading platform for crypto-assets.
The competent authority of the home Member State shall notify the competent authority of the host Member State of the intended offer to the public or the intended admission to trading on a trading platform for crypto-assets within 2 working days following the receipt of the list referred to in the first subparagraph.
5. Competent authorities shall communicate to ESMA the crypto-asset white papers that have been notified to them and the date of their notification. ESMA shall make the notified crypto-asset white papers available in the register referred to in Article 57.
Article 8
Publication
of the crypto-asset white paper, and, where applicable, of the marketing communications
1. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, shall publish their crypto-asset white paper, and, where applicable, their marketing communications, on their website, which shall be publicly accessible, by no later than the starting date of the offer to the public of those crypto-assets or the admission of those crypto-assets to trading on a trading platform for crypto-assets. The crypto-asset white paper, and, where applicable, the marketing communications, shall remain available on the issuer’s website for as long as the crypto-assets are held by the public.
2. The published crypto-asset white paper, and, where applicable, the marketing communications, shall be identical to the version notified to the relevant competent authority in accordance with Article 7, or, where applicable, modified in accordance with Article 11.
Article 9
Offers to the public of crypto-assets, other than asset-referenced tokens or e-money tokens,
that are limited in time
1. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, that set a time limit on their offer to the public of those crypto-assets shall publish on their website the result of the offer within 16 working days from the end of the subscription period.
2. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, that set a time limit for their offer to the public of crypto-assets shall have effective arrangements in place to monitor and safeguard the funds, or other crypto-assets, raised during such offer. For that purpose, such issuers shall ensure that the funds or other crypto-assets collected during the offer to the public are kept in custody by either of the following:
(a) a credit institution, where the funds raised during the offer to the public takes the form of fiat currency;
(b) a crypto-asset service provider authorised for the custody and administration of crypto-assets on behalf of third parties.
Article 10
Permission to offer crypto-assets, other than asset-referenced tokens or e-money tokens, to the public or to seek admission for trading such crypto-assets on a trading platform for
crypto-assets
1. After publication of the crypto-asset white paper in accordance with Article 8, and, where applicable, Article 11, issuers of crypto-assets may offer their crypto-assets, other than asset-referenced tokens or e-money tokens, throughout the Union and seek admission to trading of such crypto-assets on a trading platform for crypto-assets.
2. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, that have published a crypto-asset white paper in accordance with Article 8, and where applicable Article 11, shall not be subject to any further information requirements,
with regard to the offer of those crypto-assets or the admission of such crypto-assets to a trading platform for crypto-assets.
Article 11
Modification of published crypto-asset white papers and, where applicable, published marketing communications after their publication
1. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, shall modify their published crypto-asset white paper, and, where applicable, published marketing communications, to describe any change or new fact that is likely to have a significant influence on the purchase decision of any potential purchaser of such crypto-assets, or on the decision of holders of such crypto-assets to sell or exchange such crypto-assets.
2. The issuer shall immediately inform the public on its website of the notification of a modified crypto-asset white paper with the competent authority of its home Member State and shall provide a summary of the reasons for which it has notified a modified crypto-asset white paper.
3. The order of the information in a modified crypto-asset white paper, and, where applicable, in modified marketing communications, shall be consistent with that of the crypto-asset white paper or marketing communications published in accordance with Article 8.
4. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, shall notify their modified crypto-asset white papers, and where applicable, modified marketing communications, to the competent authority of their home Member State, including the reasons for such modification, at least seven working days before their publication. That competent authority may exercise the powers laid down in Article 82(1).
5. Within 2 working days of the receipt of a draft modified crypto-asset white paper, and, where applicable, the modified marketing communications, the competent authority of the home Member State shall notify the modified crypto-asset white paper and, where applicable, the modified marketing communications, to the competent authority of the host Member State referred to in Article 7(4).
6. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, shall publish the modified crypto-asset white paper, and, where applicable, the modified marketing communications, including the reasons for such modification, on their website in accordance with Article 8.
7. The modified crypto-asset white paper, and, where applicable, the modified marketing communications, shall be time-stamped. The latest modified crypto-asset white paper, and, where applicable, the modified marketing communications, shall be marked as the applicable version. All the modified crypto-asset white papers, and, where applicable, the modified marketing communication, shall remain available for as long as the crypto-assets are held by the public.
8. Where the offer to the public concerns utility tokens, the changes made in the modified crypto-asset white paper, and, where applicable, the modified marketing communications, shall not extend the time limit of 12 months referred to in Article 4(3).
Article 12
Right of withdrawal
1. Issuers of crypto-assets, other than asset-referenced tokens and e-money tokens, shall offer a right of withdrawal to any consumer who buys such crypto-assets directly from the issuer or from a crypto-asset service provider placing crypto-assets on behalf of that issuer.
Consumers shall have a period of 14 calendar days to withdraw their agreement to purchase those crypto-assets without incurring any cost and without giving reasons. The period of withdrawal shall begin from the day of the consumers’ agreement to purchase those crypto-assets.
2. All payments received from a consumer, including, if applicable, any charges, shall be reimbursed without undue delay and in any event not later than 14 days from the day on which the issuer of crypto-assets or a crypto-asset service provider placing crypto-assets on behalf of that issuer is informed of the consumer’s decision to withdraw from the agreement.
The reimbursement shall be carried out using the same means of payment as the consumer used for the initial transaction, unless the consumer has expressly agreed otherwise and provided that the consumer does not incur any fees as a result of such reimbursement.
3. Issuers of crypto-assets shall provide information on the right of withdrawal referred to in paragraph 1 in their crypto-asset white paper.
4. The right of withdrawal shall not apply where the crypto-assets are admitted to trading on a trading platform for crypto-assets.
5. Where issuers of crypto-assets have set a time limit on their offer to the public of such crypto-assets in accordance with Article 9, the right of withdrawal shall not be exercised after the end of the subscription period.
Article 13
Obligations of issuers of crypto-assets, other than asset-referenced tokens or e-money
tokens
1. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, shall:
(a) act honestly, fairly and professionally;
(b) communicate with the holders of crypto-assets in a fair, clear and not misleading manner;
(c) prevent, identify, manage and disclose any conflicts of interest that may arise;
(d) maintain all of their systems and security access protocols to appropriate Union standards.
For the purposes of point (d), ESMA, in cooperation with the EBA, shall develop guidelines pursuant to Article 16 of Regulation (EU) No 1095/2010 to specify the Union standards.
2. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, shall act in the best interests of the holders of such crypto-assets and shall treat them equally, unless any preferential treatment is disclosed in the crypto-asset white paper, and, where applicable, the marketing communications.
3. Where an offer to the public of crypto-assets, other than asset-referenced tokens or e-
money tokens, is cancelled for any reason, issuers of such crypto-assets shall ensure that any funds collected from purchasers or potential purchasers are duly returned to them as soon as possible.
Article 14
Liability of issuers of crypto-assets, other than asset-referenced tokens or e-money tokens for the information given in a crypto-asset white paper
1. Where an issuer of crypto-assets, other than asset-referenced tokens or e-money tokens, or its management body has infringed Article 5, by providing in its crypto-asset white paper or in a modified crypto-asset white paper information which is not complete, fair or clear or by providing information which is misleading, a holder of crypto-assets may claim damages from that issuer of crypto-assets, other than asset-referenced tokens or e-money tokens, or its management body for damage caused to her or him due to that infringement.
Any exclusion of civil liability shall be deprived of any legal effect.
2. It shall be the responsibility of the holders of crypto-assets to present evidence indicating that the issuer of crypto-assets, other than asset-referenced tokens or e-money tokens, has infringed Article 5 and that such an infringement had an impact on his or her decision to buy, sell or exchange the said crypto-assets.
3. A holder of crypto-assets shall not be able to claim damages for the information provided in a summary as referred to in Article 5(7), including the translation thereof, except where:
(a) the summary is misleading, inaccurate or inconsistent when read together with the other parts of the crypto-asset white paper;
(b) the summary does not provide, when read together with the other parts of the crypto-asset white paper, key information in order to aid consumers and investors when considering whether to purchase such crypto-assets.
4. This Article does not exclude further civil liability claims in accordance with national law.
TITLE III
Asset-referenced tokens
Chapter 1
Authorisation to offer asset-referenced tokens to the public and to seek their admission to trading on a trading platform for crypto-assets
Article 15
Authorisation
1. No issuer of asset-referenced tokens shall, within the Union, offer such tokens to the public, or seek an admission of such assets to trading on a trading platform for crypto-assets, unless such issuers have been authorised to do so in accordance with Article 19 by the competent authority of their home Member State.
2. Only legal entities that are established in the Union shall be granted an authorisation as referred to in paragraph 1.
3. Paragraph 1 shall not apply where:
(a) over a period of 12 months, calculated at the end of each calendar day, the average outstanding amount of asset-referenced tokens does not exceed EUR 5 000 000, or the equivalent amount in another currency;
(b) the offer to the public of the asset-referenced tokens is solely addressed to qualified investors and the asset-referenced tokens can only be held by such qualified investors.
Issuers of such asset-referenced tokens shall, however, produce a crypto-asset white paper as referred to in Article 17 and notify that crypto-asset white paper, and where applicable, their marketing communications, to the competent authority of their home Member State in accordance with Article 7.
4. Paragraph 1 shall not apply where the issuers of asset-referenced tokens are authorised as a credit institution in accordance with Article 8 of Directive 2013/36/EU.
Such issuers shall, however, produce a crypto-asset white paper as referred to in Article 17, and submit that crypto-asset white paper for approval by the competent authority of their home Member State in accordance with paragraph 7.
5. The authorisation granted by the competent authority shall be valid for the entire Union and shall allow an issuer to offer the asset-referenced tokens for which it has been authorised throughout the Union, or to seek an admission of such asset-referenced tokens to trading on a trading platform for crypto-assets.
6. The approval granted by the competent authority of the issuers’ crypto-asset white paper under Article 19 or on a modified crypto-asset white paper under Article 21 shall be valid for the entire Union.
7. The EBA shall, in close cooperation with ESMA, develop draft regulatory technical standards to specify the procedure for the approval of a crypto-asset white paper referred to in paragraph 4.
EBA shall submit those draft regulatory technical standards to the Commission by [please insert date 12 months after the entry into force].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
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Article 16
Application for authorisation
Issuers of asset-referenced tokens shall submit their application for an authorisation as referred to in Article 15 to the competent authority of their home Member State.
The application referred to in paragraph 1 shall contain all of the following information:
(a) the address of the applicant issuer;
(b) the articles of association of the applicant issuer;
(c) a programme of operations, setting out the business model that the applicant issuer intends to follow;
(d) a legal opinion that the asset-referenced tokens do not qualify as financial instruments, electronic money, deposits or structured deposits;
(e) a detailed description of the applicant issuer’s governance arrangements;
(f) the identity of the members of the management body of the applicant issuer;
(g) proof that the persons referred to in point (f) are of good repute and possess appropriate knowledge and experience to manage the applicant issuer;
(h) where applicable, proof that natural persons who either own, directly or indirectly, more than 20% of the applicant issuer's share capital or voting rights, or who exercise, by any other means, control over the said applicant issuer, have good repute and competence;
(i) a crypto-asset white paper as referred to in Article 17;
(j) the policies and procedures referred to in Article 30(5), points (a) to (k);
(k) a description of the contractual arrangements with the third parties referred to in the last subparagraph of Article 30(5);
(l) a description of the applicant issuer’s business continuity policy referred to in
Article 30(8);
(m) a description of the internal control mechanisms and risk management procedures referred to in Article 30(9);
(n) a description of the procedures and systems to safeguard the security, including cyber security, integrity and confidentiality of information referred to in Article 30(10);
(o) a description of the applicant issuer’s complaint handling procedures as referred to in Article 27.
For the purposes of paragraph 2, points (g) and (h), applicant issuers of asset-referenced tokens shall provide proof of all of the following:
(a)
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for all the persons involved in the management of the applicant issuer of asset-referenced tokens, the absence of a criminal record in respect of convictions or penalties under national rules in force in the fields of commercial law, insolvency law, financial services legislation, anti-money laundering legislation, counter-terrorism legislation, fraud, or professional liability;
(b)
that the members of the management body of the applicant issuer of asset-referenced tokens collectively possess sufficient knowledge, skills and experience to manage the issuer of asset-referenced tokens and that those persons are required to commit sufficient time to perform their duties.
The EBA shall, in close cooperation with ESMA, develop draft regulatory technical standards to specify the information that an application shall contain, in addition to the information referred to in paragraph 2.
The EBA shall submit those draft regulatory technical standards to the Commission by [please insert date 12 months after the entry into force].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
The EBA shall, in close cooperation with ESMA, develop draft implementing technical standards to establish standard forms, templates and procedures for the application for authorisation.
The EBA shall submit those draft implementing technical standards to the Commission by [please insert date 12 months after the entry into force].
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1093/2010.
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Article 17
Content and form of the crypto-asset white paper for asset-referenced tokens
The crypto-asset white paper referred to in Article 16(2), point (i), shall comply with all the requirements laid down in Article 4. In addition to the information referred to in Article 4, however, the crypto-asset white paper shall contain all of the following information:
(a) a detailed description of the issuer’s governance arrangements, including a description of the role, responsibilities and accountability of the third-party entities referred to in Article 30(5), point (h);
(b) a detailed description of the reserve of assets referred to in Article 32;
(c) a detailed description of the custody arrangements for the reserve assets, including the segregation of the assets, as referred to in Article 33;
(d) in case of an investment of the reserve assets as referred to in Article 34, a detailed description of the investment policy for those reserve assets;
(e) detailed information on the nature and enforceability of rights, including any direct redemption right or any claims, that holders of asset-referenced tokens and any legal or natural person as referred in Article 35(3), may have on the reserve assets or against the issuer, including how such rights may be treated in insolvency procedures.
(f) where the issuer does not offer a direct right on the reserve assets, detailed information on the mechanisms referred to in Article 35(4) to ensure the liquidity of the asset-referenced tokens;
(g) a detailed description of the complaint handling procedure referred to in Article 27;
(h) the disclosure items specified in Annexes I and II.
For the purposes of point (e), where no direct claim or redemption right has been granted to all the holders of asset-referenced tokens, the crypto-asset white paper shall contain a clear and unambiguous statement that all the holders of the crypto-assets do not have a claim on the reserve assets, or cannot redeem those reserve assets with the issuer at any time.
2. The crypto-asset white paper shall contain a summary which shall in brief and nontechnical language provide key information about the offer to the public of the asset-referenced tokens or about the intended admission of asset-referenced tokens to trading on a trading platform for crypto-assets, and in particular about the essential elements of the asset-referenced tokens concerned. The format and content of the summary of the crypto-asset white paper shall provide, in conjunction with the crypto-asset white paper, appropriate information about essential elements of the asset-referenced tokens concerned in order to help potential purchasers of the asset-referenced tokens to make an informed decision. The summary shall contain a warning that:
(i) it should be read as an introduction to the crypto-asset white paper;
(j) the prospective purchaser should base any decision to purchase an asset-
referenced token on the content of the whole crypto-asset white paper;
(k) the offer to the public of asset-referenced tokens does not constitute an offer or solicitation to sell financial instruments and that any such offer or solicitation to sell financial instruments can be made only by means of a prospectus or other offering documents pursuant to national laws;
(l) the crypto-asset white paper does not constitute a prospectus as referred to in
Regulation (EU) 2017/1129 or another offering document pursuant to Union legislation or national laws.
3. Every crypto-asset white paper shall be dated.
4. The crypto-asset white paper shall be drawn up in at least one of the official languages of the home Member State or in a language customary in the sphere of international finance.
5. The crypto-asset white paper shall be made available in machine readable formats.
6. ESMA, after consultation of the EBA, shall develop draft implementing technical standards to establish standard forms, formats and templates for the purposes of paragraph 10.
ESMA shall submit those draft implementing technical standards to the Commission by [please insert date 12 months after entry into force].
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
Article 18
Assessment of the application for authorisation
1. Competent authorities receiving an application for authorisation as referred to in Article 16 shall, within 20 working days of receipt of such application, assess whether that application, including the crypto-asset white paper referred to in Article 16(2), point (i), is complete. They shall immediately notify the applicant issuer of whether the application, including the crypto-asset white paper, is complete. Where the application, including the crypto-asset white paper, is not complete, they shall set a deadline by which the applicant issuer is to provide any missing information.
2. The competent authorities shall, within 3 months from the receipt of a complete application, assess whether the applicant issuer complies with the requirements set out in this Title and take a fully reasoned draft decision granting or refusing authorisation. Within those three months, competent authorities may request from the applicant issuer any information on the application, including on the crypto-asset white paper referred in Article 16(2), point (i).
3. Competent authorities shall, after the three months referred to in paragraph 2, transmit their draft decision to the applicant issuer, and their draft decision and the application file to the EBA, ESMA and the ECB. Where the applicant issuer is established in a Member State the currency of which is not the euro, or where a currency that is not the euro is included in the reserve assets, competent authorities shall consult the central bank of that Member State. Applicant issuers shall have the right to provide their competent authority with observations and comments on their draft decisions.
4. The EBA, ESMA, the ECB and, where applicable, a central bank as referred to in paragraph 3 shall, within 2 months after having received the draft decision and the application file, issue a non-binding opinion on the application and transmit their non-binding opinions to the competent authority concerned. That competent authority shall duly consider those non-binding opinions and the observations and comments of the applicant issuer.
Article 19
Grant or refusal of the authorisation
1. Competent authorities shall, within one month after having received the non-binding opinion referred to in Article 18(4), take a fully reasoned decision granting or refusing authorisation to the applicant issuer and, and, within 5 working days, notify that decision to applicant issuers. Where an applicant issuer is authorised, its crypto-asset white paper shall be deemed to be approved.
2. Competent authorities shall refuse authorisation where there are objective and demonstrable grounds for believing that:
(a) the management body of the applicant issuer may pose a threat to its effective, sound and prudent management and business continuity and to the adequate consideration of the interest of its clients and the integrity of the market;
3.
(b) the applicant issuer fails to meet or is likely to fail to meet any of the requirements of this Title;
(c) the applicant issuer’s business model may pose a serious threat to financial stability, monetary policy transmission or monetary sovereignty.
Competent authorities shall inform the EBA, ESMA and the ECB and, where applicable, the central banks referred to in Article 18(3), of all authorisations granted. ESMA shall include the following information in the register of crypto-assets and crypto-asset service providers referred to in Article 57:
(a) the name, legal form and the legal entity identifier of the issuer of asset-referenced tokens;
(b) the commercial name, physical address and website of the issuer of the asset-referenced tokens;
(c) the crypto-asset white papers or the modified crypto-asset white papers;
(d) any other services provided by the issuer of asset-referenced tokens not covered by this Regulation, with a reference to the relevant Union or national law.
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Article 20
Withdrawal of the authorisation
Competent authorities shall withdraw the authorisation of issuers of asset-referenced tokens in any of the following situations:
(a)
(b) (c)
(d)
the issuer has not used its authorisation within 6 months after the authorisation has been granted;
the issuer has not used its authorisation for
6 successive months;
the issuer has obtained its authorisation by irregular means, including making false statements in the application for authorisation referred to in Article 16 or in any crypto-asset white paper modified in accordance with Article 21;
the issuer no longer meets the conditions under which the authorisation was granted;
(e) the issuer has seriously infringed the provisions of this Title;
(f) has been put under an orderly wind-down plan, in accordance with applicable national insolvency laws;
(g) has expressly renounced its authorisation or has decided to stop its operations.
Issuers of asset-referenced tokens shall notify their competent authority of any of the situations referred to in points (f) and (g).
Competent authorities shall notify the competent authority of an issuer of asset-referenced tokens of the following without delay:
(a) the fact that a third-party entity as referred to in Article 30(5), point (h) has lost its authorisation as a credit institution as referred to in Article 8 of Directive 2013/36/EU, as a crypto-asset service provider as referred to in Article 53 of this Regulation, as a payment institution as referred to in Article 11 of Directive (EU) 2015/2366, or as an electronic money institution as referred to in Article 3 of Directive 2009/110/EC;
(b) the fact that an issuer of asset-referenced tokens, or the members of its management body, have breached national provisions transposing Directive (EU) 2015/849 of the European Parliament and of the Council54 in respect of money laundering or terrorism financing.
3. Competent authorities shall withdraw the authorisation of an issuer of asset-
referenced tokens where they are of the opinion that the facts referred to in paragraph 2, points (a) and (b), affect the good repute of the management body of that issuer, or indicate a failure of the governance arrangements or internal control mechanisms as referred to in Article 30.
When the authorisation is withdrawn, the issuer of asset-referenced tokens shall implement the procedure under Article 42.
Article 21
Modification of published crypto-asset white papers for asset-referenced tokens
1. Issuers of asset-referenced tokens shall also notify the competent authority of their
home Member States of any intended change of the issuer’s business model likely to have a significant influence on the purchase decision of any actual or potential holder of asset-referenced tokens, which occurs after the authorisation mentioned in Article 19. Such changes include, among others, any material modifications to:
(a) the governance arrangements;
(b) the reserve assets and the custody of the reserve assets;
(c) the rights granted to the holders of asset-referenced tokens;
(d) the mechanism through which asset-referenced tokens are issued, created and destroyed;
(e) the protocols for validating the transactions in asset-referenced tokens;
(f) the functioning of the issuer’s proprietary DLT, where the asset-referenced tokens are issued, transferred and stored on such a DLT;
(g) the mechanisms to ensure the redemption of the asset-referenced tokens or to ensure their liquidity;
(h) the arrangements with third parties, including for managing the reserve assets and the investment of the reserve, the custody of reserve assets, and, where applicable, the distribution of the asset-referenced tokens to the public;
(i)
(j)
the liquidity management policy for issuers of significant asset-referenced tokens;
the complaint handling procedure.
2. Where any intended change as referred to in paragraph 1 has been notified to the
competent authority, the issuer of asset-referenced tokens shall produce a draft modified crypto-asset white paper and shall ensure that the order of the information appearing there is consistent with that of the original crypto-asset white paper.
Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).
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The competent authority shall electronically acknowledge receipt of the draft modified crypto-asset white paper as soon as possible, and within 2 working days after receiving it.
The competent authority shall grant its approval or refuse to approve the draft modified crypto-asset white paper within 20 working days following acknowledgement of receipt of the application. During the examination of the draft amended crypto-asset white paper, the competent authority may also request any additional information, explanations or justifications on the draft amended crypto-asset white paper. When the competent authority requests such additional information, the time limit of 20 working days shall commence only when the competent authority has received the additional information requested.
The competent authority may also consult the EBA, ESMA and the ECB, and, where applicable, the central banks of Member States the currency of which is not euro.
3. Where approving the modified crypto-asset white paper, the competent authority
may request the issuer of asset-referenced tokens:
(a) to put in place mechanisms to ensure the protection of holders of asset-referenced tokens, when a potential modification of the issuer’s operations can have a material effect on the value, stability, or risks of the asset-referenced tokens or the reserve assets;
(b) take any appropriate corrective measures to ensure financial stability.
Article 22
Liability of issuers of asset-referenced tokens for the information given in a crypto-asset
white paper
1. Where an issuer of asset-referenced tokens or its management body has infringed Article 17, by providing in its crypto-asset white paper or in a modified crypto-asset white paper information which is not complete, fair or clear or by providing information which is misleading, a holder of such asset-referenced tokens may claim damages from that issuer of asset-referenced tokens or its management body for damage caused to her or him due to that infringement.
Any exclusion of civil liability shall be deprived of any legal effect.
2. It shall be the responsibility of the holders of asset-referenced tokens to present evidence indicating that the issuer of asset-referenced tokens has infringed Article 17 and that such an infringement had an impact on his or her decision to buy, sell or exchange the said asset-referenced tokens.
3. A holder of asset-referenced tokens shall not be able to claim damages for the information provided in a summary as referred to in Article 17(2), including the translation thereof, except where:
(a) (b)
the summary is misleading, inaccurate or inconsistent when read together with the other parts of the crypto-asset white paper;
the summary does not provide, when read together with the other parts of the crypto-asset white paper, key information in order to aid consumers and investors when considering whether to purchase such asset-referenced tokens.
4. This Article does not exclude further civil liability claims in accordance with
national law.
Chapter 2
Obligations
of all issuers of asset-referenced tokens
Article 23
Obligation to act honestly, fairly and professionally in the best interest of the holders of
asset-referenced tokens
1. Issuers of asset-referenced tokens shall:
(a) act honestly, fairly and professionally;
(b) communicate with the holders of asset-referenced tokens in a fair, clear and not misleading manner.
2. Issuers of asset-referenced tokens shall act in the best interests of the holders of such tokens and shall treat them equally, unless any preferential treatment is disclosed in the crypto-asset white paper, and, where applicable, the marketing communications.
Article 24
Publication of the crypto-asset white paper, and, where applicable, of the marketing
communications
Issuers of asset-referenced tokens shall publish on their website their approved crypto-asset white paper as referred to in Article 19(1) and, where applicable, their modified crypto-asset white paper referred to in Article 21 and their marketing communications referred to in Article 25. The approved crypto-asset white papers shall be publicly accessible by no later than the starting date of the offer to the public of the asset-referenced tokens or the admission of those tokens to trading on a trading platform for crypto-assets. The approved crypto-asset white paper, and, where applicable, the modified crypto-asset white paper and the marketing communications, shall remain available on the issuer’s website for as long as the asset-referenced tokens are held by the public.
Article 25
Marketing communications
1. Any marketing communications relating to an offer to the public of asset-referenced
tokens, or to the admission of such asset-referenced tokens to trading on a trading platform for crypto-assets, shall comply with all of the following:
(a) the marketing communications shall be clearly identifiable as such;
(b) (c) (d)
the information in the marketing communications shall be fair, clear and not misleading;
the information in the marketing communications shall be consistent with the information in the crypto-asset white paper;
the marketing communications shall clearly state that a crypto-asset white paper has been published and indicate the address of the website of the issuer of the crypto-assets.
2. Where no direct claim or redemption right has been granted to all the holders of
asset-referenced tokens, the marketing communications shall contain a clear and unambiguous statement that all the holders of the asset-referenced tokens do not have
a claim on the reserve assets or cannot redeem those reserve assets with the issuer at any time.
Article 26
Ongoing information to holders of asset-referenced tokens
1. Issuers of asset-referenced tokens shall at least every month and in a clear, accurate and transparent manner disclose on their website the amount of asset-referenced tokens in circulation and the value and the composition of the reserve assets referred to in Article 32.
2. Issuers of asset-referenced tokens shall as soon as possible and in a clear, accurate and transparent manner disclose on their website the outcome of the audit of the reserve assets referred to in Article 32.
3. Without prejudice to Article 77, issuers of asset-referenced tokens shall as soon as possible and in a clear, accurate and transparent manner disclose on their website any event that has or is likely to have a significant effect on the value of the asset-referenced tokens, or on the reserve assets referred to in Article 32.
Article 27
Complaint handling procedure
1. Issuers of asset-referenced tokens shall establish and maintain effective and transparent procedures for the prompt, fair and consistent handling of complaints received from holders of asset-referenced tokens. Where the asset-referenced tokens are distributed, totally or partially, by third-party entities as referred to in Article 30(5) point (h), issuers of asset-referenced tokens shall establish procedures to facilitate the handling of such complaints between holders of asset-referenced tokens and such third-party entities.
2. Holders of asset-referenced tokens shall be able to file complaints with the issuers of their asset-referenced tokens free of charge.
3. Issuers of asset-referenced tokens shall develop and make available to clients a template for filing complaints and shall keep a record of all complaints received and any measures taken in response thereof.
4. Issuers of asset-referenced tokens shall investigate all complaints in a timely and fair manner and communicate the outcome of such investigations to the holders of their asset-referenced tokens within a reasonable period of time.
5. The EBA, in close cooperation with ESMA, shall develop draft regulatory technical standards to specify the requirements, templates and procedures for complaint handling.
The EBA shall submit those draft regulatory technical standards to the Commission by ... [please insert date 12 months after the date of entry into force of this Regulation].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Article 28
Prevention, identification, management and disclosure of conflicts of interest
1. Issuers of asset-referenced tokens shall maintain and implement effective policies and procedures to prevent, identify, manage and disclose conflicts of interest between themselves and:
(a) their shareholders;
(b) the members of their management body;
(c) their employees;
(d) any natural persons who either own, directly or indirectly, more than 20% of the asset-backed crypto-asset issuer's share capital or voting rights, or who exercise, by any other means, a power of control over the said issuer;
(e) the holders of asset-referenced tokens;
(f) any third party providing one of the functions as referred in Article 30(5), point (h);
(g) where applicable, any legal or natural persons referred to in Article 35(3).
Issuers of asset-referenced tokens shall, in particular, take all appropriate steps to prevent, identify, manage and disclose conflicts of interest arising from the management and investment of the reserve assets referred to in Article 32.
2. Issuers of asset-referenced tokens shall disclose to the holders of their asset-referenced tokens the general nature and sources of conflicts of interest and the steps taken to mitigate them.
3. Such disclosure shall be made on the website of the issuer of asset-referenced tokens in a prominent place.
4. The disclosure referred to in paragraph 3 shall be sufficiently precise to enable holders of their asset-referenced tokens to take an informed purchasing decision about the asset-referenced tokens.
5. The EBA shall develop draft regulatory technical standards to specify:
(a) the requirements for the policies and procedures referred to in paragraph 1;
(b) the arrangements for the disclosure referred to in paragraphs 3.
The EBA shall submit those draft regulatory technical standards to the Commission by ... [please insert date 12 months after the date of entry into force of this Regulation].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Article 29
Information to competent authorities
Issuers of asset-referenced tokens shall notify their competent authorities of any changes to their management body.
Article 30
Governance arrangements
1. Issuers of asset-referenced tokens shall have robust governance arrangements, including a clear organisational structure with well-defined, transparent and consistent lines of responsibility, effective processes to identify, manage, monitor and report the risks to which it is or might be exposed, and adequate internal control mechanisms, including sound administrative and accounting procedures.
2. Members of the management body of issuers of asset-referenced tokens shall have the necessary good repute and competence, in terms of qualifications, experience and skills, to perform their duties and to ensure the sound and prudent management of such issuers. They shall also demonstrate that they are capable of committing sufficient time to effectively carry out their functions.
3. Natural persons who either own, directly or indirectly, more than 20% of the share capital or voting rights of issuers of asset-referenced tokens, or who exercise, by any other means, a power of control over such issuers shall have the necessary good repute and competence.
4. None of the persons referred to in paragraphs 2 or 3 shall have been convicted of offences relating to money laundering or terrorist financing or other financial crimes.
5. Issuers of asset-referenced tokens shall adopt policies and procedures that are sufficiently effective to ensure compliance with this Regulation, including compliance of its managers and employees with all the provisions of this Title. In particular, issuers of asset-referenced tokens shall establish, maintain and implement policies and procedures on:
(a) the reserve of assets referred to in Article 32;
(b) the custody of the reserve assets, as specified in Article 33;
(c) the rights or the absence of rights granted to the holders of asset-referenced tokens, as specified in Article 35;
(d) the mechanism through which asset-referenced tokens are issued, created and destroyed;
(e) the protocols for validating transactions in asset-referenced tokens;
(f) the functioning of the issuer’s proprietary DLT, where the asset-referenced tokens are issued, transferred and stored on such DLT or similar technology that is operated by the issuer or a third party acting on its behalf;
(g) the mechanisms to ensure the redemption of asset-referenced tokens or to ensure their liquidity, as specified in Article 35(4);
(h) arrangements with third-party entities for operating the reserve of assets, and for the investment of the reserve assets, the custody of the reserve assets, and, where applicable, the distribution of the asset-referenced tokens to the public;
(i) complaint handling, as specified in Article 27;
(j) conflicts of interests, as specified in Article 28;
(k) a liquidity management policy for issuers of significant asset-referenced tokens, as specified in Article 41(3).
Issuers of asset-referenced tokens that use third-party entities to perform the functions set out in point (h), shall establish and maintain contractual arrangements with those third-party entities that precisely set out the roles, responsibilities, rights and obligations of both the issuers of asset-referenced tokens and of each of those third-party entities. A contractual arrangement with cross-jurisdictional implications shall provide for an unambiguous choice of law.
6. Unless they have initiated a plan as referred to in Article 42, issuers of asset-referenced tokens shall employ appropriate and proportionate systems, resources and procedures to ensure the continued and regular performance of their services and activities. To that end, issuers of asset-referenced tokens shall maintain all their systems and security access protocols to appropriate Union standards.
7. Issuers of asset-referenced tokens shall identify sources of operational risk and minimise those risks through the development of appropriate systems, controls and procedures.
8. Issuers of asset-referenced tokens shall establish a business continuity policy that ensures, in case of an interruption of their systems and procedures, the preservation of essential data and functions and the maintenance of their activities, or, where that is not possible, the timely recovery of such data and functions and the timely resumption of their activities.
9. Issuers of asset-referenced tokens shall have internal control mechanisms and effective procedures for risk assessment and risk management, including effective control and safeguard arrangements for managing ICT systems as required by Regulation (EU) 2021/xx of the European Parliament and of the Council.55 The procedures shall provide for a comprehensive assessment relating to the reliance on third-party entities as referred to in paragraph 5, point (h). Issuers of asset-referenced tokens shall monitor and evaluate on a regular basis the adequacy and effectiveness of the internal control mechanisms and procedures for risk assessment and take appropriate measures to address any deficiencies.
10. Issuers of asset-backed crypto-assets shall have systems and procedures in place that are adequate to safeguard the security, integrity and confidentiality of information as required by Regulation (EU) 2021/xx of the European parliament and of the Council56. Those systems shall record and safeguard relevant data and information collected and produced in the course of the issuers’ activities.
11. Issuers of asset-referenced tokens shall ensure that they are regularly audited by independent auditors. The results of those audits shall be communicated to the management body of the issuer concerned and made available to the competent authority.
12. The EBA, in close cooperation with ESMA, shall develop draft regulatory technical standards specifying the minimum content of the governance arrangements on:
(a) the monitoring tools for the risks referred to in paragraph 1 and in the paragraph 7;
Proposal for a Regulation of the European Parliament and the Council on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014 and (EU) No 909/2014 - COM(2020)595
Proposal for a Regulation of the European Parliament and the Council on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014 and (EU) No 909/2014 - COM(2020)595
55
56
(b) the internal control mechanism referred to in paragraphs 1 and 9;
(c) the business continuity plan referred to in paragraph 8;
(d) the audits referred to in paragraph 11;
The EBA shall submit those draft regulatory technical standards to the Commission by [please insert date 12 months after entry into force].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Article 31
Own funds requirements
1. Issuers of asset-referenced tokens shall, at all times, have in place own funds equal to an amount of at least the higher of the following:
(a) EUR 350 000;
(b) 2% of the average amount of the reserve assets referred to in Article 32.
For the purpose of points (b), the average amount of the reserve assets shall mean the average amount of the reserve assets at the end of each calendar day, calculated over the preceding 6 months.
Where an issuer offers more than one category of asset-referenced tokens, the amount referred to in point (b) shall be the sum of the average amount of the reserve assets backing each category of asset-referenced tokens.
2. The own funds referred to in paragraph 1 shall consist of the Common Equity Tier 1 items and instruments referred to in Articles 26 to 30 of Regulation (EU) No 575/2013 after the deductions in full, pursuant to Article 36 of that Regulation, without the application of threshold exemptions referred to in Articles 46 and 48 of that Regulation.
3. Competent authorities of the home Member States may require issuers of asset-referenced tokens to hold an amount of own funds which is up to 20 % higher than the amount resulting from the application of paragraph 1, point (b), or permit such issuers to hold an amount of own funds which is up to 20 % lower than the amount resulting from the application of paragraph 1, point (b), where an assessment of the following indicates a higher or a lower degree of risk:
(a) the evaluation of the risk-management processes and internal control mechanisms of the issuer of asset-referenced tokens as referred to in Article 30, paragraphs 1, 7 and 9;
(b) the quality and volatility of the reserve assets referred to in Article 32;
(c) the types of rights granted by the issuer of asset-referenced tokens to holders of asset-referenced tokens in accordance with Article 35;
(d) where the reserve assets are invested, the risks posed by the investment policy on the reserve assets;
(e) the aggregate value and number of transactions carried out in asset-referenced tokens;
(f) the importance of the markets on which the asset-referenced tokens are offered and marketed;
(g) where applicable, the market capitalisation of the asset-referenced tokens.
4. The EBA, in close cooperation with ESMA, shall develop draft regulatory technical
standards further specifying:
(a) the methodology for the calculation of the own funds set out in paragraph 1;
(b) (c)
the methodology for the calculation of the own funds set out in paragraph
the procedure and timeframe for an issuer of significant asset-referenced tokens to adjust to higher own funds requirements as set out in paragraph 3;
the criteria for requiring higher own funds or for allowing lower own funds, as set out in paragraph 3.
The EBA shall submit those draft regulatory technical standards to the Commission by [please insert date 12 months after entry into force].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Chapter 3 Reserve of assets
Article 32
Obligation to have reserve assets, and composition and management of such reserve of
assets
1. Issuers of asset-references tokens shall at all times constitute and maintain a reserve of assets.
2. Issuers that offers two or more categories of asset-referenced tokens to the public shall operate and maintain separate reserve of assets for each category of asset-referenced tokens which shall be managed separately.
Issuers of asset-referenced tokens that offer the same asset-referenced tokens to the public shall operate and maintain only one reserve of assets for that category of asset-referenced tokens.
3. The management bodies of issuers of asset-referenced tokens shall ensure effective and prudent management of the reserve assets. The issuers shall ensure that the creation and destruction of asset-referenced tokens is always matched by a corresponding increase or decrease in the reserve of assets and that such increase or decrease is adequately managed to avoid any adverse impacts on the market of the reserve assets.
4. Issuers of asset-referenced tokens shall have a clear and detailed policy describing the stabilisation mechanism of such tokens. That policy and procedure shall in particular:
(a) list the reference assets to which the asset-referenced tokens aim at stabilising their value and the composition of such reference assets;
(b) describe the type of assets and the precise allocation of assets that are included in the reserve of assets;
5.
(c) (d)
(e) (f)
(g)
contain a detailed assessment of the risks, including credit risk, market risk and liquidity risk resulting from the reserve assets;
describe the procedure by which the asset-referenced tokens are created and destroyed, and the consequence of such creation or destruction on the increase and decrease of the reserve assets;
mention whether the reserve assets are invested;
where issuers of asset-referenced tokens invest a part of the reserve assets, describe in detail the investment policy and contain an assessment of how that investment policy can affect the value of the reserve assets;
describe the procedure to purchase asset-referenced tokens and to redeem such tokens against the reserve assets, and list the persons or categories of persons who are entitled to do so.
Without prejudice to Article 30(11), issuers of asset-referenced tokens shall mandate an independent audit of the reserve assets every six months, as of the date of its authorisation as referred to in Article 19.
1.
Article 33
Custody of reserve assets
Issuers of asset-referenced tokens shall establish, maintain and implement custody policies, procedures and contractual arrangements that ensure at all times that:
(a) the reserve assets are segregated from the issuers’ own assets;
(b) the reserve assets are not encumbered nor pledged as a ‘financial collateral
arrangement’, a ‘title transfer financial collateral arrangement’ or as a ‘security
financial collateral arrangement’ within the meaning of Article 2(1), points (a),
(b) and (c) of Directive 2002/47/EC of the European Parliament and of the Council57;
(c) the reserve assets are held in custody in accordance with paragraph 4;
(d) the issuers of asset-referenced tokens have prompt access to the reserve assets to meet any redemption requests from the holders of asset-referenced tokens.
Issuers of asset-referenced tokens that issue two or more categories of asset-referenced tokens in the Union shall have a custody policy for each reserve of assets. Issuers of asset-referenced tokens that have issued the same category of asset-referenced tokens shall operate and maintain only one custody policy.
2. The reserve assets received in exchange for the asset-referenced tokens shall be held
in custody by no later than 5 business days after the issuance of the asset-referenced tokens by:
(a) a crypto-asset service provider authorised under Article 53 for the service mentioned in Article 3(1), point (10), where the reserve assets take the form of crypto-assets;
(b) a credit institution for all other types of reserve assets.
Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements (OJ L 168, 27.6.2002, p. 43).
57
3. Issuers of asset-referenced tokens shall exercise all due skill, care and diligence in the selection, appointment and review of credit institutions and crypto-asset providers appointed as custodians of the reserve assets in accordance with paragraph 2.
Issuers of asset-referenced tokens shall ensure that the credit institutions and crypto-asset service providers appointed as custodians of the reserve assets have the necessary expertise and market reputation to act as custodians of such reserve assets, taking into account the accounting practices, safekeeping procedures and internal control mechanisms of those credit institutions and crypto-asset service providers. The contractual arrangements between the issuers of asset-referenced tokens and the custodians shall ensure that the reserve assets held in custody are protected against claims of the custodians’ creditors.
The custody policies and procedures referred to in paragraph 1 shall set out the selection criteria for the appointments of credit institutions or crypto-asset service providers as custodians of the reserve assets and the procedure to review such appointments.
Issuers of asset-referenced tokens shall review the appointment of credit institutions or crypto-asset service providers as custodians of the reserve assets on a regular basis. For that purpose, the issuer of asset-referenced tokens shall evaluate its exposures to such custodians, taking into account the full scope of its relationship with them, and monitor the financial conditions of such custodians on an ongoing basis.
4. The reserve assets held on behalf of issuers of asset-referenced tokens shall be entrusted to credit institutions or crypto-asset service providers appointed in accordance with paragraph 3 in the following manner:
(a) credit institutions shall hold in custody fiat currencies in an account opened in the credit institutions’ books;
(b) for financial instruments that can be held in custody, credit institutions shall hold in custody all financial instruments that can be registered in a financial instruments account opened in the credit institutions’ books and all financial instruments that can be physically delivered to such credit institutions;
(c) for crypto-assets that can be held in custody, the crypto-asset service providers shall hold the crypto-assets included in the reserve assets or the means of access to such crypto-assets, where applicable, in the form of private cryptographic keys;
(d) for other assets, the credit institutions shall verify the ownership of the issuers of the asset-referenced tokens and shall maintain a record of those reserve assets for which they are satisfied that the issuers of the asset-referenced tokens own those reserve assets.
For the purpose of point (a), credit institutions shall ensure that fiat currencies are registered in the credit institutions’ books within segregated account in accordance with national provisions transposing Article 16 of Commission Directive 2006/73/EC58 into the legal order of the Member States. The account shall be opened
Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating
58
in the name of the issuers of the asset-referenced tokens for the purpose of managing the reserve assets, so that the fiat currencies held in custody can be clearly identified as belonging to the reserve of assets.
For the purposes of point (b), credit institutions shall ensure that all those financial instruments that can be registered in a financial instruments account opened in the credit institution’s books are registered in the credit institutions’ books within segregated accounts in accordance with national provisions transposing Article 16 of Commission Directive 2006/73/EC59 into the legal order of the Member States. The financial instruments account shall be opened in the name of the issuers of the asset-referenced tokens for the purpose of managing the reserve assets, so that the financial instruments held in custody can be clearly identified as belonging to the reserve of assets.
For the purposes of point (c), crypto-asset service providers shall open a register of positions in the name of the issuers of the asset-referenced tokens for the purpose of managing the reserve assets, so that the crypto-assets held in custody can be clearly identified as belonging to the reserve of assets.
For the purposes of point (d), the assessment whether issuers of asset-referenced tokens own the reserve assets shall be based on information or documents provided by the issuers of the asset-referenced tokens and, where available, on external evidence.
5. The appointment of a credit institution or a crypto-asset service provider as custodian of the reserve assets in accordance with paragraph 3 shall be evidenced by a written contract as referred to in Article 30(5), second subparagraph. Those contracts shall, amongst others, regulate the flow of information deemed necessary to enable the issuers of asset-referenced tokens and the credit institutions and the crypto-assets service providers to perform their functions.
6. The credit institutions and crypto-asset service providers that have been appointed as custodians in accordance with paragraph 3 shall act honestly, fairly, professionally, independently and in the interest of the issuer of the asset-referenced tokens and the holders of such tokens.
7. The credit institutions and crypto-asset service providers that have been appointed as custodians in accordance with paragraph 3 shall not carry out activities with regard to issuers of asset-referenced tokens that may create conflicts of interest between those issuers, the holders of the asset-referenced tokens, and themselves unless all of the following conditions have been complied with:
(a) the credit institutions or the crypto-asset service providers have functionally and hierarchically separated the performance of their custody tasks from their potentially conflicting tasks;
(b) the potential conflicts of interest have been properly identified, managed, monitored and disclosed by the issuer of the asset-referenced tokens to the holders of the asset-referenced tokens, in accordance with Article 28.
conditions for investment firms and defined terms for the purposes of that Directive (OJ L 241, 2.9.2006, p. 26).
Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the
European Parliament and of the Council as regards organisational requirements and operating
conditions for investment firms and defined terms for the purposes of that Directive (OJ L 241, 2.9.2006, p. 26).
59
8. In case of a loss of a financial instrument or a crypto-asset held in custody as referred
to in paragraph 4, the credit institution or the crypto-asset service provider that lost that financial instrument or crypto-asset shall return to the issuer of the asset-referenced tokens a financial instrument or a crypto-asset of an identical type or the corresponding value without undue delay. The credit institution or the crypto-asset service provider concerned shall not be liable where it can prove that the loss has arisen as a result of an external event beyond its reasonable control, the consequences of which would have been unavoidable despite all reasonable efforts to the contrary.
Article 34
Investment of the reserve assets
1. Issuers of asset-referenced tokens that invest a part of the reserve assets shall invest those reserve assets only in highly liquid financial instruments with minimal market and credit risk. The investments shall be capable of being liquidated rapidly with minimal adverse price effect.
2. The financial instruments in which the reserve assets are invested shall be held in custody in accordance with Article 33.
3. All profits or losses, including fluctuations in the value of the financial instruments referred to in paragraph 1, and any counterparty or operational risks that result from the investment of the reserve assets shall be borne by the issuer of the asset-referenced tokens.
4. The EBA shall, after consulting ESMA and the European System of Central Banks, develop draft regulatory technical standards specifying the financial instruments that can be considered highly liquid and bearing minimal credit and market risk as referred to in paragraph 1. When specifying the financial instruments referred to in paragraph 1, the EBA shall take into account:
(a) the various types of reserve assets that can back an asset-referenced token;
(b) the correlation between those reserve assets and the highly liquid financial instruments the issuers may invest in;
(c) the conditions for recognition as high quality liquid assets under Article 412 of
Regulation (EU) No 575/2013 and Commission Delegated Regulation (EU) 2015/6160.
EBA shall submit those draft regulatory technical standards to the Commission by [please insert date 12 months after entry into force].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Commission Delegated Regulation (EU) 2015/61 of 10 October 2014 to supplement Regulation (EU) No 575/2013 of the European Parliament and the Council with regard to liquidity coverage requirement for Credit Institutions (OJ L 011 17.1.2015, p. 1).
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Article 35
Rights on issuers of asset-referenced tokens or on the reserve assets
1. Issuers of asset-referenced tokens shall establish, maintain and implement clear and detailed policies and procedures on the rights granted to holders of asset-referenced tokens, including any direct claim or redemption rights on the issuer of those asset-referenced tokens or on the reserve assets.
2. Where holders of asset-referenced tokens are granted rights as referred to in paragraph 1, issuers of asset-referenced tokens shall establish a policy setting out:
(a) the conditions, including thresholds, periods and timeframes, for holders of asset-referenced tokens to exercise those rights;
(b) the mechanisms and procedures to ensure the redemption of the asset-referenced tokens, including in stressed market circumstances, in case of an orderly wind-down of the issuer of asset-referenced tokens as referred to in Article 42, or in case of a cessation of activities by such issuer;
(c) the valuation, or the principles of valuation, of the asset-referenced tokens and of the reserve assets when those rights are exercised by the holder of asset-referenced tokens;
(d) the settlement conditions when those rights are exercised;
(e) the fees applied by the issuers of asset-referenced tokens when the holders exercise those rights.
The fees referred to in point (e) shall be proportionate and commensurate with the actual costs incurred by the issuers of asset-referenced tokens.
3. Where issuers of asset-referenced tokens do not grant rights as referred to in paragraph 1 to all the holders of asset-referenced tokens, the detailed policies and procedures shall specify the natural or legal persons that are provided with such rights. The detailed policies and procedures shall also specify the conditions for exercising such rights and the obligations imposed on those persons.
Issuers of asset-referenced tokens shall establish and maintain appropriate contractual arrangements with those natural or legal persons who are granted such rights. Those contractual arrangements shall precisely set out the roles, responsibilities, rights and obligations of the issuers of asset-referenced tokens and each of those natural or legal persons. A contractual arrangement with cross-jurisdictional implications shall provide for an unambiguous choice of law.
4. Issuers of asset-referenced tokens that do not grant rights as referred to in paragraph 1 to all the holders of such asset-referenced tokens shall put in place mechanisms to ensure the liquidity of the asset-referenced tokens. For that purpose, they shall establish and maintain written agreements with crypto-asset service providers authorised for the crypto-asset service referred to in Article 3(1) point (12). The issuer of asset-referenced tokens shall ensure that a sufficient number of crypto-asset service providers are required to post firm quotes at competitive prices on a regular and predictable basis.
Where the market value of asset-referenced tokens varies significantly from the value of the reference assets or the reserve assets, the holders of asset-referenced tokens shall have the right to redeem the crypto-assets from the issuer of crypto-assets
directly. In that case, any fee applied for such redemption shall be proportionate and commensurate with the actual costs incurred by the issuer of asset-referenced tokens.
The issuer shall establish and maintain contractual arrangements to ensure that the proceeds of the reserve assets are paid to the holders of asset-referenced tokens, where the issuer decides to stop operating or where it has been placed under an orderly wind-down, or when its authorisation has been withdrawn.
5. The EBA shall, in close cooperation with ESMA, develop draft regulatory technical
standards specifying:
(a) the obligations imposed on the crypto-asset service providers ensuring the liquidity of asset-referenced tokens as set out in the first subparagraph of paragraph 4;
(b) the variations of value triggering a direct right of redemption from the issuer of asset-referenced tokens as set out in the second subparagraph of paragraph 4, and the conditions for exercising such a right.
EBA shall submit those draft regulatory technical standards to the Commission by ... [please insert 12 months after the date of entry into force of this Regulation].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Article 36
Prohibition of interest
Issuers of asset-referenced tokens or crypto-asset service providers shall not provide for interest or any other benefit related to the length of time during which a holder of asset-referenced tokens holds asset-referenced assets.
Chapter 4 Acquisitions of issuers of asset-referenced tokens
Article 37
Assessment of intended acquisitions of issuers of asset-referenced tokens
1. Any natural or legal person or such persons acting in concert (the ‘proposed acquirer’), who intends to acquire, directly or indirectly, a qualifying holding in an issuer of asset-referenced tokens or to further increase, directly or indirectly, such a qualifying holding so that the proportion of the voting rights or of the capital held would reach or exceed 10 %, 20 %, 30 % or 50 %, or so that the issuer of asset-referenced tokens would become its subsidiary (the ‘proposed acquisition’), shall notify the competent authority of that issuer thereof in writing, indicating the size of the intended holding and the information required by the regulatory technical standards adopted by the Commission in accordance with Article 38(4).
2. Any natural or legal person who has taken a decision to dispose, directly or indirectly, of a qualifying holding in an issuer of asset-referenced tokens (the ‘proposed vendor’) shall first notify the competent authority in writing thereof, indicating the size of such holding. Such a person shall likewise notify the competent authority where it has taken a decision to reduce a qualifying holding so that the
proportion of the voting rights or of the capital held would fall below 10 %, 20 %, 30 % or 50 % or so that the issuer of asset-referenced tokens would cease to be that person’s subsidiary.
3. Competent authorities shall promptly and in any event within two working days following receipt of the notification required under paragraph 1 acknowledge receipt thereof in writing.
4. Competent authorities shall assess the intended acquisition referred to in paragraph 1 and the information required by the regulatory technical standards adopted by the Commission in accordance with Article 38(4), within 60 working days from the date of the written acknowledgement of receipt referred to in paragraph 3.
When acknowledging receipt of the notification, competent authorities shall inform the persons referred to in paragraph 1 of the date on which the assessment will be finalised.
5. When performing the assessment referred to in paragraph 4, first subparagraph, competent authorities may request from the persons referred to in paragraph 1 any additional information that is necessary to complete that assessment. Such request shall be made before the assessment is finalised, and in any case no later than on the 50th working day from the date of the written acknowledgement of receipt referred to in paragraph 3. Such requests shall be made in writing and shall specify the additional information needed.
Competent authorities shall halt the assessment referred to in paragraph 4, first subparagraph, until they have received the additional information referred to in the first subparagraph of this paragraph, but for no longer than 20 working days. Any further requests by competent authorities for additional information or for clarification of the information received shall not result in an additional interruption of the assessment.
Competent authority may extend the interruption referred to in the second subparagraph of this paragraph up to 30 working days where the persons referred to in paragraph 1 are situated or regulated outside the Union.
6. Competent authorities that, upon completion of the assessment, decide to oppose the intended acquisition referred to in paragraph 1 shall notify the persons referred to in paragraph 1 thereof within two working days, but before the date referred to in paragraph 4, second subparagraph, extended, where applicable, in accordance with paragraph 5, second and third subparagraph. That notification shall provide the reasons for that decision.
7. Where competent authorities do not oppose the intended acquisition referred to in paragraph 1 before the date referred to in paragraph 4, second subparagraph, extended, where applicable, in accordance with paragraph 5, second and third subparagraph, the intended acquisition or intended disposal shall be deemed to be approved.
8. Competent authority may set a maximum period for concluding the intended acquisition referred to in paragraph 1, and extend that maximum period where appropriate.
Article 38
Content of the assessment of intended acquisitions of issuers of asset-referenced tokens
1. When performing the assessment referred to in Article 37(4), competent authorities shall appraise the suitability of the persons referred to in Article 37(1) and the financial soundness of intended acquisition against all of the following criteria:
(a) the reputation of the persons referred to in Article 37(1);
(b) the reputation and experience of any person who will direct the business of the issuer of asset-referenced tokens as a result of the intended acquisition or disposal;
(c) the financial soundness of the persons referred to in Article 37(1), in particular in relation to the type of business pursued and envisaged in the issuer of asset-referenced tokens in which the acquisition is intended;
(d) whether the issuer of asset-referenced tokens will be able to comply and continue to comply with the provisions of this Title;
(e) whether there are reasonable grounds to suspect that, in connection with the intended acquisition, money laundering or terrorist financing within the meaning of Article 1 of Directive (EU) 2015/849/EC is being or has been committed or attempted, or that the intended acquisition could increase the risk thereof.
2. Competent authorities may oppose the intended acquisition only where there are reasonable grounds for doing so on the basis of the criteria set out in paragraph 1 or where the information provided in accordance with Article 37(4) is incomplete or false.
3. Member States shall not impose any prior conditions in respect of the level of holding that must be acquired nor allow their competent authorities to examine the proposed acquisition in terms of the economic needs of the market.
4. The EBA, in close cooperation with ESMA, shall develop draft regulatory technical standards to establish an exhaustive list of information that is necessary to carry out the assessment referred to in Article 37(4), first subparagraph and that shall be provided to the competent authorities at the time of the notification referred to in paragraph 37(1). The information required shall be relevant for a prudential assessment, be proportionate and be adapted to the nature of the persons and the intended acquisition referred to in Article 37(1).
The EBA shall submit those draft regulatory technical standards to the Commission by [please insert 12 months after the entry into force of this Regulation].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Chapter 5 Significant asset-referenced tokens
Article 39
Classification of asset-referenced tokens as significant asset-referenced tokens
1. The EBA shall classify asset-referenced tokens as significant asset-referenced tokens
on the basis of the following criteria, as specified in accordance with paragraph 6 and where at least three of the following criteria are met:
(a) the size of the customer base of the promoters of the asset-referenced tokens, the shareholders of the issuer of asset-referenced tokens or of any of the third-party entities referred to in Article 30(5), point (h);
(b) the value of the asset-referenced tokens issued or, where applicable, their market capitalisation;
(c) the number and value of transactions in those asset-referenced tokens;
(d) the size of the reserve of assets of the issuer of the asset-referenced tokens;
(e)
the significance of the cross-border activities of the issuer of the asset-referenced tokens, including the number of Member States where the asset-referenced tokens are used, the use of the asset-referenced tokens for crossborder payments and remittances and the number of Member States where the third-party entities referred to in Article 30(5), point (h), are established;
(f)
the interconnectedness with the financial system.
2. Competent authorities that authorised an issuer of asset-referenced tokens in accordance with Article 19 shall provide the EBA with information on the criteria referred to in paragraph 1 and specified in accordance with paragraph 6 on at least a yearly basis.
3. Where the EBA is of the opinion that asset-referenced tokens meet the criteria referred to in paragraph 1, as specified in accordance with paragraph 6, the EBA shall prepare a draft decision to that effect and notify that draft decision to the issuers of those asset-referenced tokens and the competent authority of the issuer’s home Member State. The EBA shall give issuers of such asset-referenced tokens and their competent authorities the opportunity to provide observations and comments in writing prior the adoption of its final decision. The EBA shall duly consider those observations and comments.
4. The EBA shall take its final decision on whether an asset-referenced token is a significant asset-referenced token within three months after the notification referred to in paragraph 3 and immediately notify the issuers of such asset-referenced tokens and their competent authorities thereof.
5. The supervisory responsibilities on issuers of significant asset-referenced tokens shall be transferred to the EBA one month after the notification of the decision referred to in paragraph 4.
The EBA and the competent authority concerned shall cooperate in order to ensure the smooth transition of supervisory competences.
6. The Commission shall be empowered to adopt delegated acts in accordance with
Article 121 to further specify the criteria set out in paragraph 1 for an asset-referenced token to be deemed significant and determine:
(a)
(b) (c) (d)
the thresholds for the criteria referred to in points (a) to (e) of paragraph 1, subject to the following:
i) ii)
iii)
iv) v)
the threshold for the customer base shall not be lower than two million of natural or legal persons;
the threshold for the value of the asset-referenced token issued or, where applicable, the market capitalisation of such an asset-referenced token shall not be lower than EUR 1 billion;
the threshold for the number and value of transactions in those asset-referenced tokens shall not be lower than 500 000 transactions per day or EUR 100 million per day respectively;
the threshold for the size of the reserve assets as referred to in point (d) shall not be lower than EUR 1 billion;
the threshold for the number of Member States where the asset-referenced tokens are used, including for cross-border payments and remittances, or where the third parties as referred to in Article 30(5), point (h), are established shall not be lower than seven;
the circumstances under which asset-referenced tokens and their issuers shall be considered as interconnected with the financial system;
the content and format of information provided by competent authorities to EBA under paragraph 2.
the procedure and timeframe for the decisions taken by the EBA under paragraphs 3 to 5.
Voluntary classification
Article 40
of asset-referenced tokens as significant asset-referenced tokens
1. Applicant issuers of asset-referenced tokens that apply for an authorisation as referred to in Article 16, may indicate in their application for authorisation that they wish to classify their asset-referenced tokens as significant asset-referenced tokens. In that case, the competent authority shall immediately notify the request from the prospective issuer to the EBA.
For the asset-referenced tokens to be classified as significant at the time of authorisation, applicant issuers of asset-referenced tokens shall demonstrate, through its programme of operations as referred to in Article 16(2), point (c) that it is likely to meet at least three criteria referred to in Article 39(1), as specified in accordance with Article 39(6).
2. Where, on the basis of the programme of operation, the EBA is of the opinion that asset-referenced tokens meet the criteria referred to in Article 39(1), as specified in accordance with Article 39(6), the EBA shall prepare a draft decision to that effect and notify that draft decision to the competent authority of the applicant issuer’s home Member State.
The EBA shall give competent authority of the applicant issuer’s home Member State the opportunity to provide observations and comments in writing prior the
adoption of its final decision. The EBA shall duly consider those observations and comments.
3. Where, on the basis of the programme of operation, the EBA is of the opinion that asset-referenced tokens do not meet the criteria referred to in Article 39(1), as specified in accordance with Article 39(6), the EBA shall prepare a draft decision to that effect and notify that draft decision to the applicant issuer and the competent authority of the applicant issuer’s home Member State.
The EBA shall give the applicant issuer and the competent authority of its home Member State the opportunity to provide observations and comments in writing prior the adoption of its final decision. The EBA shall duly consider those observations and comments.
4. The EBA shall take its final decision on whether an asset-referenced token is a significant asset-referenced token within three months after the notification referred to in paragraph 1 and immediately notify the issuers of such asset-referenced tokens and their competent authorities thereof.
5. Where asset-referenced tokens have been classified as significant in accordance with a decision referred to in paragraph 4, the supervisory responsibilities shall be transferred to the EBA on the date of the decision by which the competent authority grants the authorisation referred to in Article 19(1).
Article 41
Specific additional obligations for issuers of significant asset-referenced tokens
1. Issuers of significant asset-referenced tokens shall adopt, implement and maintain a remuneration policy that promotes sound and effective risk management of such issuers and that does not create incentives to relax risk standards.
2. Issuers of significant asset-referenced tokens shall ensure that such tokens can be held in custody by different crypto-asset service providers authorised for the service referred to in Article 3(1) point (10), including by crypto-asset service providers that do not belong to the same group, as defined in Article 2(11) of Directive 2013/34/EU of the European Parliament and of the Council61, on a fair, reasonable and non-discriminatory basis.
3. Issuers of significant asset-referenced tokens shall assess and monitor the liquidity needs to meet redemption requests or the exercise of rights, as referred to in Article 34, by holders of asset-referenced tokens. For that purpose, issuers of significant asset-referenced tokens shall establish, maintain and implement a liquidity management policy and procedures. That policy and those procedures shall ensure that the reserve assets have a resilient liquidity profile that enable issuer of significant asset-referenced tokens to continue operating normally, including under liquidity stressed scenarios.
4. The percentage referred to in Article 31(1), point (b), shall be set at 3% of the average amount of the reserve assets for issuers of significant asset-referenced tokens.
Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).
6
5. Where
several issuers offer the same asset-referenced token that is classified as
significant, each of those issuers shall be subject to the requirements set out in the paragraphs 1 to 4.
Where an issuer offers two or more categories of asset-referenced tokens in the Union and at least one of those asset-referenced tokens is classified as significant, such an issuer shall be subject to the requirements set out in paragraphs 1 to 4.
6. The EBA, in close cooperation with ESMA, shall develop draft regulatory technical
standards specifying:
(a) (b)
the minimum content of the governance arrangements on the remuneration policy referred to in paragraph 1;
the procedure and timeframe for an issuer of significant asset-referenced tokens to adjust to higher own funds requirements as set out in paragraph 4.
The EBA shall submit those draft regulatory technical standards to the Commission by [please insert date 12 months after entry into force].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Chapter 6
Orderly
wind-down
Article 42
Orderly wind-down
1. Issuers of asset-referenced tokens shall have in place a plan that is appropriate to support an orderly wind-down of their activities under applicable national law, including continuity or recovery of any critical activities performed by those issuers or by any third-party entities as referred in Article 30(5), point (h). That plan shall demonstrate the ability of the issuer of asset-referenced tokens to carry out an orderly wind-down without causing undue economic harm to the holders of asset-referenced tokens or to the stability of the markets of the reserve assets.
2. The plan referred to in paragraph 1 shall include contractual arrangements, procedures and systems to ensure that the proceeds from the sale of the remaining reserve assets are paid to the holders of the asset-referenced tokens.
3. The plan referred to in paragraph 1 shall
be reviewed and updated regularly.
TITLE IV: Electronic money tokens
Chapter 1
Requirements to be fulfilled by all issuers of electronic money
tokens
Article 43
Authorisation
1. No electronic money tokens shall be offered to the public in the Union or shall be admitted to trading on a trading platform for crypto-assets unless the issuer of such electronic money tokens:
(a) is authorised as a credit institution or as an ‘electronic money institution’ within the meaning of Article 2(1) of Directive 2009/110/EC;
(b) complies with requirements applying to electronic money institution set out in Titles II and III of Directive 2009/110/EC, unless stated otherwise in this Title;
(c) publishes a crypto-asset white paper notified to the competent authority, in accordance with Article 46.
For the purpose of point (a), an ‘electronic money institution’ as defined in Article 2(1) of Directive 2009/110/EC shall be authorised to issue ‘e-money tokens’ and e-money tokens shall be deemed to be ‘electronic money’ as defined in Article 2(2) of Directive 2009/110/EC.
An e-money token which references a Union currency shall be deemed to be offered to the public in the Union.
2. Paragraph 1 shall not apply to:
(a) e-money tokens that are marketed, distributed and held by qualified investors and can
only be held by qualified investors;
(b) if the average outstanding amount of e-money tokens does not exceed EUR 5 000 000, or the corresponding equivalent in another currency, over a period of 12 months, calculated at the end of each calendar day.
For the purpose of point (b), where the Member State has set a threshold lower than EUR 5 000 000 in accordance with Article 9 (1)(a) of Directive 2009/110/EC, such a threshold shall apply.
In the case referred to in points (a) and (b), the issuers of electronic money tokens shall produce a crypto-asset white paper and notify such crypto-asset white paper to the competent authority in accordance with Article 46.
Article 44
Issuance and redeemability of electronic money tokens
1. By derogation of Article 11 of Directive 2009/110/EC, only the following
requirements regarding the issuance and redeemability of e-money tokens shall apply to issuers of e-money tokens.
2. Holders of e-money tokens shall be provided with a claim on the issuer of such e-money tokens. Any e-money token that does not provide all holders with a claim shall be prohibited.
3. Issuers of such e-money tokens shall issue e-money tokens at par value and on the receipt of funds within the meaning of Article 4(25) of Directive 2015/2366.
4. Upon request by the holder of e-money tokens, the respective issuer must redeem, at any moment and at par value, the monetary value of the e-money tokens held to the holders of e-money tokens, either in cash or by credit transfer.
5. Issuers
of e-money tokens shall prominently state the conditions of redemption,
including any fees relating thereto, in the crypto-asset white paper as referred to in Article 46.
6. Redemption may be subject to a fee only if stated in the crypto-asset white paper. Any such fee shall be proportionate and commensurate with the actual costs incurred by issuers of e-money tokens.
7. Where issuers of e-money tokens does not fulfil legitimate redemption requests from holders of e-money tokens within the time period specified in the crypto-asset white paper and which shall not exceed 30 days, the obligation set out in paragraph 3 applies to any following third party entities that has been in contractual arrangements with issuers of e-money tokens:
(a) entities ensuring the safeguarding of funds received by issuers of e-money tokens in exchange for e-money tokens in accordance with Article 7 of Directive 2009/110/EC;
(b) any natural or legal persons in charge of distributing e-money tokens on behalf of issuers of e-money tokens.
Article 45
Prohibition of interests
By derogation to Article 12 of Directive 2009/110/EC, no issuer of e-money tokens or crypto-asset service providers shall grant interest or any other benefit related to the length of time during which a holder of e-money tokens holds such e-money tokens.
Article 46
Content and form of the crypto-asset white paper for electronic money tokens
1. Before offering e-money tokens to the public in the EU or seeking an admission of such e-money tokens to trading on a trading platform, the issuer of e-money tokens shall publish a crypto-asset white paper on its website.
2. The crypto-asset white paper referred to in paragraph 1 shall contain all the following relevant information:
(a) a description of the issuer of e-money tokens;
(b) a detailed description of the issuer’s project, and a presentation of the main participants involved in the project's design and development;
(c) an indication on whether the crypto-asset white paper concerns an offering of e-money tokens to the public and/or an admission of such e-money tokens to trading on a trading platform for crypto-assets;
(d)
(e)
(f)
a detailed description of the rights and obligations attached to the e-money tokens, including the redemption right at par value as referred to in Article 44 and the procedures and conditions of exercise of these rights;
the information on the underlying technology and standards met by the issuer of e-money tokens allowing for the holding, storing and transfer of such e-money tokens;
the risks relating to the issuer of e-money issuer, the e-money tokens and the implementation of the project, including the technology;
(g) the disclosure items specified in Annex III.
3. All such information referred to in paragraph 2 shall be fair, clear and not misleading. The crypto-asset white paper shall not contain material omissions and it shall be presented in a concise and comprehensible form.
4. Every crypto-asset white paper shall also include a statement from the management body of the issuer of e-money confirming that the crypto-asset white paper complies with the requirements of this Title and specifying that, to their best knowledge, the information presented in the crypto-asset white paper is correct and that there is no significant omission.
5. The crypto-asset white paper shall include a summary which shall, in brief and nontechnical language, provide key information in relation to the offer to the public of e-money tokens or admission of such e-money tokens to trading, and in particular about the essential elements of the e-money tokens. The summary shall indicate that:
(a) the holders of e-money tokens have a redemption right at any moment and at par value;
(b) the conditions of redemption, including any fees relating thereto.
6. Every crypto-asset white paper shall be dated.
7. The crypto-asset white paper shall be drawn up in at least one of the official languages of the home Member State or in a language customary in the sphere of international finance.
8. The crypto-asset white paper shall be made available in machine readable formats, in accordance with Article 5.
9. The issuer of e-money tokens shall notify its draft crypto-asset white paper, and where applicable their marketing communications, to the relevant competent authority as referred to in Article 3(1) point (24)(b) at least 20 working days before its date of its publication.
After the notification and without prejudice of the powers laid down in Directive 2009/110/EC or the national laws transposing it, the competent authority of the home Member State may exercise the powers laid down in Article 82(1) of this Regulation.
10. Any change or new fact likely to have a significant influence on the purchase decision of any potential purchaser or on the decision of holders of e-money tokens to sell or exchange such e-money tokens to the issuer which occurs after the publication of the initial crypto-asset white paper shall be described in a modified crypto-asset white paper prepared by the issuer and notified to the relevant competent authority, in accordance with paragraph 9.
Article 47
Liability of issuers of e-money tokens for the information given in a crypto-asset white
paper
1. Where an issuer of e-money tokens or its management body has infringed Article 46, by providing in its crypto-asset white paper or in a modified crypto-asset white paper information which is not complete, fair or clear or by providing information which is misleading, a holder of such e-money tokens may claim damages from that issuer of e-money tokens or its management body for damage caused to her or him due to that infringement.
Any exclusion of civil liability shall be deprived of any legal effect.
2. It shall be the responsibility of the holders of e-money tokens to present evidence indicating that the issuer of e-money tokens has infringed Article 46 and that such an infringement had an impact on his or her decision to buy, sell or exchange the said e-money tokens.
3. A holder of e-money tokens shall not be able to claim damages for the information provided in a summary as referred to in Article 46(5), including the translation thereof, except where:
(a) the summary is misleading, inaccurate or inconsistent when read together with the other parts of the crypto-asset white paper;
(b) the summary does not provide, when read together with the other parts of the crypto-asset white paper, key information in order to aid consumers and investors when considering whether to purchase such e-money tokens.
4. This Article does not exclude further civil liability claims in accordance with national law.
Article 48
Marketing communications
1. Any marketing communications relating to an offer of e-money tokens to the public, or to the admission of such e-money tokens to trading on a trading platform for crypto-assets, shall comply with all of the following:
(a) the marketing communications shall be clearly identifiable as such;
(b) the information in the marketing communications shall be fair, clear and not misleading;
(c) the information in the marketing communications shall be consistent with the information in the crypto-asset white paper;
(d) the marketing communications shall clearly state that a crypto-asset white paper has been published and indicate the address of the website of the issuer of the e-money tokens.
2. The marketing communications shall contain a clear and unambiguous statement that all the holders of the e-money tokens have a redemption right at any time and at par value on the issuer.
Article 49
Investment of funds received in exchange of e-money token issuers
Funds received by issuers of e-money tokens in exchange of e-money tokens and that are invested in secure, low-risk assets in accordance with Article 7(2) of Directive 2009/110/EC shall be invested in assets denominated in the same currency as the one referenced by the e-money token.
Chapter 2 Significant e-money tokens
Article 50
Classification of e-money tokens as significant e-money tokens
1. The EBA shall classify e-money tokens as significant e-money tokens on the basis of the criteria referred to in Article 39(1), as specified in accordance with Article 39(6), and where at least three of those criteria are met.
2. Competent authorities of the issuer’s home Member State shall provide the EBA with information on the criteria referred to in Article 39(1) of this Article and specified in accordance with Article 39(6) on at least a yearly basis.
3. Where the EBA is of the opinion that e-money tokens meet the criteria referred to in Article 39(1), as specified in accordance with Article 39(6), the EBA shall prepare a draft decision to that effect and notify that draft decision to the issuers of those e-money tokens and the competent authority of the issuer’s home Member State. The EBA shall give issuers of such e-money tokens and their competent authorities the opportunity to provide observations and comments in writing prior the adoption of its final decision. The EBA shall duly consider those observations and comments.
4. The EBA shall take its final decision on whether an e-money token is a significant e-money token within three months after the notification referred to in paragraph 3 and immediately notify the issuers of such e-money tokens and their competent authorities thereof.
Article 51
Voluntary classification of e-money tokens as significant e-money tokens
1. An issuer of e-money tokens, authorised as a credit institution or as an ‘electronic money institution’ as defined in Article 2(1) of Directive 2009/110/EC or applying for such authorisation, may indicate that they wish to classify their e-money tokens as significant e-money tokens. In that case, the competent authority shall immediately notify the request from the issuer or applicant issuer to EBA.
For the e-money tokens to be classified as significant, the issuer or applicant issuer of e-money tokens shall demonstrate, through a detailed programme of operations, that it is likely to meet at least three criteria referred to in Article 39(1), as specified in accordance with Article 39(6).
2. Where, on the basis of the programme of operation, the EBA is of the opinion that the e-money tokens meet the criteria referred to in Article 39(1), as specified in accordance with Article 39(6), the EBA shall prepare a draft decision to that effect
and notify that draft decision to the competent authority of the issuer or applicant issuer’s home Member State.
The EBA shall give competent authority of the issuer or applicant issuer’s home Member State the opportunity to provide observations and comments in writing prior the adoption of its final decision. The EBA shall duly consider those observations and comments.
3. Where, on the basis of the programme of operation, the EBA is of the opinion that the e-money tokens do not meet the criteria referred to in Article 39(1), as specified in accordance with Article 39(6), the EBA shall prepare a draft decision to that effect and notify that draft decision to the issuer or applicant issuer and the competent authority of the issuer or applicant issuer’s home Member State.
The EBA shall give the issuer or applicant issuer and the competent authority of its home Member State the opportunity to provide observations and comments in writing prior the adoption of its final decision. The EBA shall duly consider those observations and comments.
4. The EBA shall take its final decision on whether an e-money token is a significant e-money token within three months after the notification referred to in paragraph 1 and immediately notify the issuers or applicant issuer of such e-money tokens and their competent authorities thereof. The decision shall be immediately notified to the issuer or applicant issuer of e-money tokens and to the competent authority of its home Member State.
Article 52
Specific additional obligations for issuers of significant e-money tokens
Issuers of at least one category of e-money tokens shall apply the following requirements applying to issuers of asset-referenced tokens or significant asset-referenced tokens:
(a) Articles 33 and 34 of this Regulation, instead of Article 7 of Directive 2009/110/EC;
(b) Article 41, paragraphs 1, 2, and 3 of this Regulation;
(c) Article 41 paragraph 4 of this Regulation, instead of Article 5 of Directive 2009/110/EC;
(d) Article 42 of this Regulation.
TITLE V: Authorisation and operating conditions for Crypto-Asset Service providers
Chapter 1: Authorisation of
crypto-asset service providers
Article 53
Authorisation
1. Crypto-asset services shall only be provided by legal persons that have a registered office in a Member State of the Union and that have been authorised as crypto-asset service providers in accordance with Article 55
Crypto-asset service providers shall, at all times, meet the conditions for their authorisation.
No person who is not a crypto-asset service provider shall use a name, or a corporate name, or issue marketing communications or use any other process suggesting that he or she is authorised as a crypto-asset service provider or that is likely to create confusion in that respect.
2. Competent authorities that grant an authorisation under Article 55 shall ensure that such authorisation specifies the crypto-asset services that crypto-asset service providers are authorised to provide.
3. An authorisation as a crypto-asset service provider shall be valid for the entire Union and shall allow crypto-asset service providers to provide throughout the Union the services for which they have been authorised, either through the right of establishment, including through a branch, or through the freedom to provide
services.
Crypto-asset
service providers that provide crypto-asset services on a cross-border
basis shall not be required to have a physical presence in the territory of a host Member State.
4. Crypto-asset service providers seeking to add crypto-asset services to their
authorisation shall request the competent authorities that granted the authorisation for an extension of their authorisation by complementing and updating the information referred to in Article 54. The request for extension shall be processed in accordance with Article 55.
Article 54
Application for authorisation
1. Legal persons that intend to provide crypto-asset services shall apply for authorisation as a crypto-asset service provider to the competent authority of the Member State where they have their registered office.
2. The application referred to in paragraph 1 shall contain all of the following:
(a) the name, including the legal name and any other commercial name to be used, the legal entity identifier of the applicant crypto-asset service provider, the website operated by that provider, and its physical address;
(b) the legal status of the applicant crypto-asset service provider;
(c) the articles of association of the applicant crypto-asset service provider;
(d) a programme of operations setting out the types of crypto-asset services that the applicant crypto-asset service provider wishes to provide, including where and how these services are to be marketed;
(e) a description of the applicant crypto-asset service provider’s governance arrangements;
(f) for all natural persons involved in the management body of the applicant crypto-asset service provider, and for all natural persons who, directly or indirectly, hold 20% or more of the share capital or voting rights, proof of the absence of a criminal record in respect of infringements of national rules in the fields of commercial law, insolvency law, financial services law, anti-money laundering law, counter-terrorism legislation, and professional liability obligations;
(g) proof that the natural persons involved in the management body of the applicant crypto-asset service provider collectively possess sufficient knowledge, skills and experience to manage that provider and that those natural persons are required to commit sufficient time to the performance of their duties;
(h) a description of the applicant crypto-asset service provider’s internal control mechanism, procedure for risk assessment and business continuity plan;
(i) descriptions both in technical and non-technical language of applicant crypto-
asset service provider’s IT systems and security arrangements;
(j) proof that the applicant crypto-asset service provider meets the prudential
safeguards in accordance with Article 60;
(k) a description of the applicant crypto-asset service provider’s procedures to handle complaints from clients;
(l) a description of the procedure for the segregation of client’s crypto-assets and
funds;
(m) a description of the procedure and system to detect market abuse.
(n) where the applicant crypto-asset service provider intends to ensure the custody and administration of crypto-assets on behalf of third parties, a description of the custody policy;
(o) where the applicant crypto-asset service provider intends to operate a trading platform for crypto-assets, a description of the operating rules of the trading platform;
(p) where the applicant crypto-asset service provider intends to exchange crypto-assets for fiat currency or crypto-assets for other crypto-assets, a description of the non-discriminatory commercial policy;
(q) where the applicant crypto-asset service provider intends to execute orders for crypto-assets on behalf of third parties, a description of the execution policy;
(r) where the applicant intends to receive and transmit orders for crypto-assets on
behalf of third parties, proof that the natural persons giving advice on behalf of the applicant crypto-asset service provider have the necessary knowledge and expertise to fulfil their obligations.
3. Competent authorities shall not require an applicant crypto-asset service provider to
provide any information they have already received pursuant to Directive 2009/110/EC, Directive 2014/65/EU, Directive 2015/2366/EU or national law applicable to crypto-asset services prior to the entry into force of this Regulation, provided that such information or documents are still up-to-date and are accessible to the competent authorities.
Article 55
Assessment of the application for authorisation and grant or refusal of authorisation
1. Competent authorities shall, within 25 working days of receipt of the application referred to in Article 54(1), assess whether that application is complete by checking that the information listed in Article 54(2) has been submitted. Where the application is not complete, the authorities shall set a deadline by which the applicant crypto-asset service providers are to provide the missing information.
2. Competent authorities may refuse to review applications where such applications remain incomplete after the deadline referred to in paragraph 1.
3. Competent authorities shall immediately notify applicant crypto-asset service providers of the fact that an application is complete.
4. Before granting or refusing to an authorisation as a crypto-asset service provider, competent authorities shall consult the competent authorities of another Member State in any of the following cases:
(a) the applicant crypto-asset service provider is a subsidiary of a crypto-asset service provider authorised in that other Member State;
(b) the applicant crypto-asset service provider is a subsidiary of the parent undertaking of a crypto-asset service provider authorised in that other Member State;
(c)
the applicant crypto-asset service provider is controlled by the same natural or legal persons who control a crypto-asset service provider authorised in that other Member State.
5. Competent authorities shall, within three months from the date of receipt of a complete application, assess whether the applicant crypto-asset service provider complies with the requirements of this Title and shall adopt a fully reasoned decision granting or refusing an authorisation as a crypto-asset service provider. That assessment shall take into account the nature, scale and complexity of the crypto-asset services that the applicant crypto-asset service provider intends to provide.
Competent authorities may refuse authorisation where there are objective and demonstrable grounds for believing that:
(a) the management body of the applicant crypto-asset service provider poses a threat to its effective, sound and prudent management and business continuity, and to the adequate consideration of the interest of its clients and the integrity of the market;
(b) the applicant fails to meet or is likely to fail to meet any requirements of this Title.
6. Competent authorities shall inform ESMA of all authorisations granted under this Article. ESMA shall add all the information submitted in successful applications to
7.
the register of authorised crypto-asset service providers provided for in Article57. ESMA may request information in order to ensure that competent authorities grant authorisations under this Article in a consistent manner.
Competent authorities shall notify applicant crypto-asset service providers of their decisions to grant or to refuse authorisation within three working days of the date of that decision.
1.
2.
3.
4.
Article 56
Withdrawal of authorisation
Competent authorities shall withdraw the authorisations in any of the following situations the crypto-asset service provider:
(a)
(b) (c) (d)
(e) (f)
has not used its authorisation within 18 authorisation;
months of the date of granting of the
has expressly renounced to its authorisation;
has not provided crypto-asset services for nine successive months;
has obtained its authorisation by irregular means, including making false statements in its application for authorisation;
no longer meets the conditions under which the authorisation was granted and has not taken the remedial actions requested by the competent authority within a set-time frame;
has seriously infringed this Regulation.
Competent authorities shall also have the power to withdraw authorisations in any of the following situations:
(a) the crypto-asset service provider or the members of its management body have infringed national law implementing Directive (EU) 2015/84962 in respect of money laundering or terrorist financing;
(b) the crypto-asset service provider has lost its authorisation as a payment institution in accordance with Article 13 of Directive (EU) 2015/2366 or its authorisation as an electronic money institution granted in accordance with Title II of Directive 2009/110/EC and that crypto-asset service provider has failed to remedy the situation within 40 calendar days.
Where a competent authority withdraws an authorisation, the competent authority designated as a single point of contact in that Member State in accordance with Article 81 shall notify ESMA and the competent authorities of the host Member States thereof without undue delay. ESMA shall register the information on the withdrawal of the authorisation in the register referred to in Article 57.
Competent authorities may limit the withdrawal of authorisation to a particular service.
Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73–117)
62
5.
6.
7.
Before withdrawing an the authorisation, competent authorities shall consult the competent authority of another Member State where the crypto-asset service provider concerned is:
(a) a subsidiary of a crypto-asset service provider authorised in that other Member
State;
(b) (c)
a subsidiary of the parent undertaking of a crypto-asset service provider authorised in that other Member State;
controlled by the same natural or legal persons who control a crypto-asset service provider authorised in that other Member State.
The EBA, ESMA and any competent authority of a host Member State may at any time request that the competent authority of the home Member State examines whether the crypto-asset service provider still complies with the conditions under which the authorisation was granted.
Crypto-asset service providers shall establish, implement and maintain adequate procedures ensuring the timely and orderly transfer of the clients’ crypto-assets and funds to another crypto-asset service provider when an authorisation is withdrawn.
1. 2.
Article 57
Register of crypto-asset service providers
ESMA shall establish a register of all crypto-asset service providers. That register shall be publicly available on its website and shall be updated on a regular basis.
The register referred to in paragraph 1 shall contain the following data:
(a) (b)
(c) (d) (e)
(f)
the name, legal form and the legal entity identifier and the branches of the crypto-asset service provider;
the commercial name, physical address and website of the crypto-asset service provider or the trading platform for crypto-assets operated by the crypto-asset service provider;
the name and address of the competent authority which granted authorisation and its contact details;
the list of crypto-asset services for which the crypto-asset service provider is authorised;
the list of Member States in which the crypto-asset service provider has notified its intention to provide crypto-asset services in accordance with Article 58;
any other services provided by the crypto-asset service provider not covered by this Regulation with a reference to the relevant Union or national law.
3.
Any withdrawal of an authorisation of a crypto-asset service provider in accordance with Article 56 shall remain published in the register for five years.
Article 58
Cross-border provision of crypto-asset services
1. Crypto-asset service providers that intend to provide crypto-asset services in more than one Member State, shall submit the following information to the competent authority designated as a single point of contact in accordance with Article 81.
(a) a list of the Member States in which the crypto-asset service provider intends to provide crypto-asset services;
(b) the starting date of the intended provision of the crypto-asset services;
(c) a list of all other activities provided by the crypto-asset service provider not covered by this Regulation.
2. The single point of contact of the Member State where authorisation was granted shall, within 10 working days of receipt of the information referred to in paragraph 1 communicate that information to the competent authorities of the host Member States, to ESMA and to the EBA. ESMA shall register that information in the register referred to in Article 57.
3. The single point of contact of the Member State which granted authorisation shall inform the crypto-asset service provider concerned of the communication referred to in paragraph 2 without delay.
4. Crypto-asset service providers may start to provide crypto-asset services in a Member State other than their home Member State from the date of the receipt of the communication referred to in paragraph 3 or at the latest 15 calendar days after having submitted the information referred to in paragraph 1.
Chapter 2: Obligation for all crypto-asset
service providers
Article 59
Obligation to act honestly, fairly and professionally in the best interest of clients and
information to clients
1. Crypto-asset service providers shall act honestly, fairly and professionally in accordance with the best interests of their clients and prospective clients.
2. Crypto-asset service providers shall provide their clients with fair, clear and not misleading information, in particular in marketing communications, which shall be identified as such. Crypto-asset service providers shall not, deliberately or negligently, mislead a client in relation to the real or perceived advantages of any crypto-assets.
3. Crypto-asset service providers shall warn clients of risks associated with purchasing crypto-assets.
4. Crypto-asset service providers shall make their pricing policies publicly available, by online posting with a prominent place on their website.
Article 60
Prudential requirements
1. Crypto-asset service providers shall, at all times, have in place prudential safeguards
equal to an amount of at least the higher of the following:
2.
3.
4.
5.
6.
(a) the amount of permanent minimum capital requirements indicated in Annex IV, depending on the nature of the crypto-asset services provided;
(b) one quarter of the fixed overheads of the preceding year, reviewed annually;
The prudential safeguards referred to in paragraph 1 shall take any of the following forms:
(a) own funds, consisting of Common Equity Tier 1 items referred to in Articles 26 to 30 of Regulation (EU) No 575/2013 after the deductions in full, pursuant to Article 36 of that Regulation, without the application of threshold exemptions pursuant to Articles 46 and 48 of that Regulation;
(b) an insurance policy covering the territories of the Union where crypto-asset services are actively provided or a comparable guarantee.
Crypto-asset service providers that have not been in business for one year from the date on which they started providing services shall use, for the calculation referred to in paragraph 1, point (b), the projected fixed overheads included in their projections for the first 12 months’ of service provision, as submitted with their application for authorisation.
The insurance policy referred to in paragraph 2 shall have at least all of the following characteristics:
(a) (b) (c)
(d)
it has an initial term of no less than one year;
the notice period for its cancellation is at least 90 days;
it is taken out from an undertaking authorised to provide insurance, in accordance with Union law or national law;
it is provided by a third-party entity.
The insurance policy referred to in paragraph 2, point (b) shall include, coverage against the risk of:
(a) (b) (c)
(d)
(e) (f)
loss of documents;
misrepresentations or misleading statements made;
acts, errors or omissions resulting in a breach of:
i) legal and regulatory obligations;
ii) the duty to act honestly, fairly and professionally towards clients;
iii) obligations of confidentiality;
failure to establish, implement and maintain appropriate procedures to prevent conflicts of interest;
losses arising from business disruption or system failures;
where applicable to the business model, gross negligence in safeguarding of clients’ crypto-assets and funds.
For the purposes of paragraph 1 point (b), crypto-asset service providers shall calculate their fixed overheads for the preceding year, using figures resulting from the applicable accounting framework, by subtracting the following items from the total expenses after distribution of profits to shareholders in their most recently
audited annual financial statements or, where audited statements are not available, in annual financial statements validated by national supervisors:
(a) staff bonuses and other remuneration, to the extent that those bonuses and that remuneration depend on a net profit of the crypto-asset service providers in the relevant year;
(b) employees', directors' and partners' shares in profits;
(c) other appropriations of profits and other variable remuneration, to the extent that they are fully discretionary;
(d) non-recurring expenses from non-ordinary activities.
Article 61
Organisational requirements
1. Members of the management body of crypto-asset service providers shall have the necessary good repute and competence, in terms of qualifications, experience and skills to perform their duties. They shall demonstrate that they are capable of committing sufficient time to effectively carry out their functions.
2. Natural persons who either own, directly or indirectly, more than 20% of the crypto-asset service provider's share capital or voting rights, or who exercise, by any other means, a power of control over the said crypto-asset service provider shall provide evidence that they have the necessary good repute and competence.
3. None of the persons referred to in paragraphs 1 or 2 shall have been convicted of offences relating to money laundering or terrorist financing or other financial crimes.
4. Crypto-asset service providers shall employ personnel with the skills, knowledge and expertise necessary for the discharge of responsibilities allocated to them, and taking into account the scale, the nature and range of crypto-asset services provided.
5. The management body shall assess and periodically review the effectiveness of the policies arrangements and procedures put in place to comply with the obligations set out in Chapters 2 and 3 of this Title and take appropriate measures to address any deficiencies.
6. Crypto-asset service providers shall take all reasonable steps to ensure continuity and regularity in the performance of their crypto-asset services. To that end, crypto-asset service providers shall employ appropriate and proportionate resources and procedures, including resilient and secure ICT systems in accordance with Regulation (EU) 2021/xx of the European Parliament and of the Council.63
They shall establish a business continuity policy, which shall include ICT business continuity as well as disaster recovery plans set-up in accordance with Regulation (EU) 2021/xx of the European Parliament and of the Council64 aimed at ensuring, in the case of an interruption to their ICT systems and procedures, the preservation of essential data and functions and the maintenance of crypto-asset services, or, where
Proposal for a Regulation of the European Parliament and the Council on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014 and (EU) No 909/2014 - COM(2020)595.
Proposal for a Regulation of the European Parliament and the Council on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014 and (EU) No 909/2014 - COM(2020)595.
63
64
that is not possible, the timely recovery of such data and functions and the timely resumption of crypto-asset services.
7. Crypto-asset service providers shall have internal control mechanisms and effective procedures for risk assessment, including effective control and safeguard arrangements for managing ICT systems in accordance with Regulation (EU) 2021/xx of the European Parliament and of the Council.65 They shall monitor and, on a regular basis, evaluate the adequacy and effectiveness of internal control mechanisms and procedures for risk assessment and take appropriate measures to address any deficiencies.
Crypto-asset service providers shall have systems and procedures to safeguard the security, integrity and confidentiality of information in accordance with Regulation (EU) 2021/xx of the European Parliament and of the Council.66
8. Crypto-asset service providers shall arrange for records to be kept of all crypto-asset services, orders and transactions undertaken by them. Those records shall be sufficient to enable competent authorities to fulfil their supervisory tasks and to perform the enforcement actions, and in particular to ascertain whether the crypto-asset service provider has complied with all obligations including those with respect to clients or potential clients and to the integrity of the market.
9. Crypto-asset service providers shall have in place systems, procedures and arrangements to monitor and detect market abuse as referred in Title VI. They shall immediately report to their competent authority any suspicion that there may exist circumstances that indicate that any market abuse has been committed, is being committed or is likely to be committed.
Article 62
Information to competent authorities
Crypto-asset service providers shall notify their competent authority of any changes to their management body and shall provide their competent authority with all the necessary information to assess compliance with Article 61.
Article 63
Safekeeping of clients’ crypto-assets and funds
1. Crypto-asset service providers that hold crypto-assets belonging to clients or the means of access to such crypto-assets shall make adequate arrangements to safeguard the ownership rights of clients, especially in the event of the crypto-asset service provider’s insolvency, and to prevent the use of a client’s crypto-assets on own account except with the client’s express consent.
2. Where their business models or the crypto-asset services require holding clients’ funds, crypto-asset service providers shall have adequate arrangements in place to
Proposal for a Regulation of the European Parliament and the Council on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014 and (EU) No 909/2014 - COM(2020)595.
Proposal for a Regulation of the European Parliament and the Council on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014 and (EU) No 909/2014 - COM(2020)595.
65
66
safeguard the rights of clients and prevent the use of clients’ funds, as defined under Article 4(25) of Directive (EU) 2015/236667, for their own account.
3. Crypto-asset service providers shall, promptly place any client’s funds, with a central bank or a credit institution.
Crypto-asset service providers shall take all necessary steps to ensure that the clients’ funds held with a central bank or a credit institution are held in an account or accounts separately identifiable from any accounts used to hold funds belonging to the crypto-asset service provider.
4. Crypto-asset service providers may themselves, or through a third party, provide payment services related to the crypto-asset service they offer, provided that the crypto-asset service provider itself, or the third-party, is a payment institution as defined in Article 4, point (4), of Directive (EU) 2015/2366.
5. Paragraphs 2 and 3 of this Article shall not apply to crypto-asset service providers that are electronic money institutions as defined in Article 2, point 1 of Directive 2009/110/EC or payment institutions as defined in Article 4, point (4), of Directive (EU) 2015/2366.
Article 64
Complaint handling procedure
1. Crypto-asset service providers shall establish and maintain effective and transparent procedures for the prompt, fair and consistent handling of complaints received from clients.
2. Clients shall be able to file complaints with crypto-asset service providers free of charge.
3. Crypto-asset service providers shall develop and make available to clients a template for complaints and shall keep a record of all complaints received and any measures taken in response thereof.
4. Crypto-assets service providers shall investigate all complaints in a timely and fair manner, and communicate the outcome of such investigations to their clients within a reasonable period of time.
Article 65
Prevention, identification, management and disclosure of conflicts of interest
1. Crypto-asset service providers shall maintain and operate an effective policy to
prevent, identify, manage and disclose conflicts of interest between themselves and:
(a) their shareholders or any person directly or indirectly linked to them by control;
(b) their managers and employees,
(c) their clients, or between one client and another client.
Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJL 33, 23.12.2015, p.35)
6
2.
3.
4.
1.
Crypto-asset service providers shall disclose to their clients and potential clients the general nature and sources of conflicts of interest and the steps taken to mitigate them.
Crypto-asset service providers shall make such disclosures on their website in a prominent place.
The
2
disclosure referred to in paragraph 2 shall be sufficiently precise, taking into account the nature of each client and to enable each client to take an informed decision about the service in the context of which the conflicts of interest arises.
Crypto-asset service providers shall assess and at least annually review, their policy on conflicts of interest and take all appropriate measures to address any deficiencies.
Article 66
Outsourcing
Crypto-asset service providers, that rely on third parties for the performance of operational functions, take all reasonable steps to avoid additional operational risk. They shall remain fully responsible for discharging all of their obligations under this Title and shall ensure at all times that all the following conditions are complied with:
(a) (b)
(c) (d)
outsourcing does not result in the delegation crypto-asset service providers;
the responsibility of the
(e)
(f) (g)
outsourcing does not alter the relationship between the crypto-asset service providers and their clients, nor the obligations of the crypto-asset service providers towards their clients;
outsourcing does not change the conditions for the authorisation of the crypto-asset service providers;
third parties involved in the outsourcing cooperate with the competent authority of the crypto-asset service providers’ home Member State and the outsourcing does not prevent the exercise of supervisory functions by those competent authorities, including on-site access to acquire any relevant information needed to fulfil those functions;
crypto-asset service providers retain the expertise and resources necessary for evaluating the quality of the services provided, for supervising the outsourced services effectively and for managing the risks associated with the outsourcing on an ongoing basis;
crypto-asset service providers have direct access to the relevant information of the outsourced services;
crypto-asset service providers ensure that third parties involved in the outsourcing meet the standards laid down in the relevant data protection law which would apply if the third parties were established in the Union.
2.
For the purposes of point (g), crypto-asset service providers are responsible for ensuring that the standards laid down in the relevant data protection legislation are set out in the contract referred to in paragraph 3.
Crypto-asset service providers shall have a policy on their outsourcing, including on contingency plans and exit strategies.
of
3. Crypto-asset service providers shall enter into a written agreement with any third parties involved in outsourcing. That written agreement shall specify the rights and obligations of both the crypto-asset service providers and of the third parties concerned, and shall allow the crypto-asset service providers concerned to terminate that agreement.
4. Crypto-asset service providers and third parties shall, upon request, make available to the competent authorities and the relevant authorities all information necessary to enable those authorities to assess compliance of the outsourced activities with the requirements of this Title.
Chapter 3: Obligations for the provision of specific crypto-asset
services
Article 67
Custody and administration of crypto-assets on behalf of third parties
1. Crypto-asset service providers that are authorised for the custody and administration on behalf of third parties shall enter into an agreement with their clients to specify their duties and their responsibilities. Such agreement shall include at least all the following:
(a) the identity of the parties to the agreement;
(b) the nature of the service provided and a description of that service;
(c) the means of communication between the crypto-asset service provider and the client, including the client’s authentication system;
(d) a description of the security systems used by the crypto-assets service provider;
(e) fees applied by the crypto-asset service provider;
(f) the law applicable to the agreement.
2. Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall keep a register of positions, opened in the name of each client, corresponding to each client’s rights to the crypto-assets. Crypto-asset service providers shall record as soon as possible, in that register any movements following instructions from their clients. Their internal procedures shall ensure that any movement affecting the registration of the crypto-assets is evidenced by a transaction regularly registered in the client’s position register.
3. Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall establish a custody policy with internal rules and procedures to ensure the safekeeping or the control of such crypto-assets, or the means of access to the crypto-assets, such as cryptographic keys.
Those rules and procedures shall ensure that the crypto-asset service provider cannot lose clients’ crypto-assets or the rights related to those assets due to frauds, cyber threats or negligence.
4. Where applicable, crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall facilitate the exercise of the rights attached to the crypto-assets. Any event likely to create or modify the client’s rights shall be recorded in the client’s position register as soon as possible.
5. Crypto-asset providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall provide their clients, at least once every three months and at each request of the client concerned, with a statement of position of the crypto-assets recorded in the name of those clients. That statement of position shall be made in a durable medium. The statement of position shall mention the crypto-assets concerned, their balance, their value and the transfer of crypto-assets made during the period concerned.
Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall provide their clients as soon as possible with any information about operations on crypto-assets that require a response from those clients.
6. Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall ensure that crypto-assets held on behalf of their clients or the means of access to those crypto-assets are returned as soon as possible to those clients.
7. Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall segregate holdings on behalf of their clients from their own holdings. They shall ensure that, on the DLT, their clients’ crypto-assets are held on separate addresses from those on which their own crypto-assets are held.
8. Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall be liable to their clients for loss of crypto-assets as a resulting from a malfunction or hacks up to the market value of the crypto-assets lost.
Article 68
Operation of a trading platform for crypto-assets
1. Crypto-asset service providers that are authorised for the operation of a trading
platform for crypto-assets shall lay down operating rules for the trading platform. These operating rules shall at least:
(a) set the requirements, due diligence and approval processes that are applied before admitting crypto-assets to the trading platform;
(b) define exclusion categories, if any, which are the types of crypto-assets that will not be admitted to trading on the trading platform, if any.
(c) set out the policies, procedures and the level of fees, if any, for the admission of trading of crypto-assets to the trading platform;
(d) set objective and proportionate criteria for participation in the trading activities, which promote fair and open access to the trading platform for clients willing to trade;
(e) set requirements to ensure fair and orderly trading;
(f) set conditions for crypto-assets to remain accessible for trading, including liquidity thresholds and periodic disclosure requirements;
(g) set conditions under which trading of crypto-assets can be suspended;
(h) set procedures to ensure efficient settlement of both crypto-asset transactions and fiat currency transactions.
For the purposes of point (a), the operating rules shall clearly state that a crypto-asset shall not be admitted to trading on the trading platform, where a crypto-asset white paper has been published, unless such a crypto-asset benefits from the exemption set out in Articles 4(2).
Before admitting a crypto-asset to trading, crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets shall ensure that the crypto-asset complies the operating rules of the trading platform and assess the quality of the crypto-asset concerned. When assessing the quality of a crypto-asset, the trading platform shall take into account the experience, track record and reputation of the issuer and its development team. The trading platform shall also assess the quality of the crypto-assets benefiting from the exemption set out in Articles 4(2).
The operating rules of the trading platform for crypto-assets shall prevent the admission to trading of crypto-assets which have inbuilt anonymisation function unless the holders of the crypto-assets and their transaction history can be identified by the crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets or by competent authorities.
2. These operating rules referred to in paragraph 1 shall be drafted in one of the official languages of the home Member States or in another language that is customary in the sphere of finance. Those operating rules shall be made public on the website of the crypto-asset service provider concerned.
3. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets shall not deal on own account on the trading platform for crypto-assets they operate, even when they are authorised for the exchange of crypto-assets for fiat currency or for the exchange of crypto-assets for other crypto-assets.
4. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets shall have in place effective systems, procedures and arrangements to ensure that their trading systems:
(a) are resilient;
(b) have sufficient capacity to ensure orderly trading under conditions of severe market stress;
(c) are able to reject orders that exceed pre-determined volume and price thresholds or are clearly erroneous;
(d) are fully tested to ensure that conditions under points (a), (b) and (c) are met;
(e) are subject to effective business continuity arrangements to ensure continuity of their services if there is any failure of the trading system.
5. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets shall make public any bid and ask prices and the depth of trading interests at those prices which are advertised for crypto-assets through the systems of the trading platform for crypto-assets. The crypto-asset service providers concerns shall make that information available to the public during the trading hours on a continuous basis.
6. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets shall make public the price, volume and time of the transactions executed in respect of crypto-assets traded on their trading platforms.
They shall make details of all such transactions public as close to real-time as is technically possible.
7. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets shall make the information published in accordance with paragraphs 5 and 6 available to the public on a reasonable commercial basis and ensure non-discriminatory access to that information. That information shall be made available free of charge 15 minutes after publication in a machine readable format and remain published for at least 2 years.
8. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets shall complete the final settlement of a crypto-asset transaction on the DLT on the same date as the transactions has been executed on the trading platform.
9. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets shall ensure that their fee structures are transparent, fair and non-discriminatory and that they do not create incentives to place, modify or cancel orders or to execute transactions in a way that contributes to disorderly trading conditions or market abuse as referred to in Title VI.
10. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets shall maintain resources and have back-up facilities in place to be capable of reporting to their competent authority at all times.
Article 69
Exchange of crypto-assets against fiat currency or exchange of crypto-assets against
other crypto-assets
1. Crypto-asset providers that are authorised for exchanging crypto-assets against fiat currency or other crypto-assets shall establish a non-discriminatory commercial policy that indicates, in particular, the type of clients they accept to transact with and the conditions that shall be met by clients.
2. Crypto-asset service providers that are authorised for exchanging crypto-assets against fiat currency or other crypto-assets shall publish a firm price of the crypto-assets or a method for determining the price of the crypto-assets they propose for exchange against fiat currency or other crypto-assets.
3. Crypto-asset service providers that are authorised for exchanging crypto-assets against fiat currency or other crypto-assets shall execute the clients' orders at the prices displayed at the time of their receipt.
4. Crypto-asset service providers that are authorised for exchanging crypto-assets against fiat currency or other crypto-assets shall publish the details of the orders and the transactions concluded by them, including transaction volumes and prices.
Article 70
Execution of orders for crypto-assets on behalf of third parties
1. Crypto-asset service providers that are authorised to execute orders for crypto-assets
on behalf of third parties shall take all necessary steps to obtain, when executing orders, the best possible result for their clients taking into account the best execution factors of price, costs, speed, likelihood of execution and settlement, size, nature or any other consideration relevant to the execution of the order, unless the crypto-asset
service provider concerned executes orders for crypto-assets following specific instructions given by its clients.
2. To ensure compliance with paragraph 2, a crypto-asset service provider that are authorised to execute orders for crypto-assets on behalf of third parties shall establish and implement effective execution arrangements. In particular, they shall establish and implement an order execution policy to allow them to obtain, for their clients’ orders, the best possible result. In particular, this order execution policy shall provide for the prompt, fair and expeditious execution of clients’ orders and prevent the misuse by the crypto-asset service providers’ employees of any information relating to clients’ orders.
3. Crypto-asset service providers that are authorised to execute orders for crypto-assets on behalf of third parties shall provide appropriate and clear information to their clients on their order execution policy and any significant change to it.
Article 71
Placing of crypto-assets
1. Crypto-asset service providers that are authorised for placing crypto-assets shall communicate the following information to the issuer or any third party acting on their behalf, before concluding a contract with them:
(a) the type of placement considered, including whether a minimum amount of purchase is guaranteed or not;
(b) an indication of the amount of transaction fees associated with the service for the proposed operation;
(c) the considered timing, process and price for the proposed operation;
(d) information about the targeted purchasers.
Crypto-asset service providers that are authorised for placing crypto-assets shall, before placing the crypto-assets concerned shall obtain the agreement of the issuers or any third party acting on their behalf as regards points (a) to (d).
2. The rules on conflicts of interest referred to in Article 65 shall have specific and adequate procedures in place to prevent, monitor, manage and potentially disclose any conflicts of interest arising from the following situations:
(a) the crypto-asset service providers place the crypto-assets with their own clients;
(b) the proposed price for placing crypto-assets has been overestimated or underestimated.
Article 72
Reception and transmission of orders on behalf of third parties
1. Crypto-asset service providers that are authorised for the provision of the reception
and transmission of orders on behalf of third parties shall establish and implement procedures and arrangements which provide for the prompt and proper transmission of client’s orders for execution on a trading platform for crypto-assets or to another crypto-asset service provider.
2. Crypto-asset service providers that are authorised for the provision of the reception and transmission of orders on behalf of third parties shall not receive any remuneration, discount or non-monetary benefit for routing clients’ orders received from clients to a particular trading platform for crypto-assets or to another crypto-asset service provider.
3. Crypto-asset service providers that are authorised for the provision of the reception and transmission of orders on behalf of third parties shall not misuse information relating to pending clients’ orders, and shall take all reasonable steps to prevent the misuse of such information by any of their employees.
Article 73
Advice on crypto-assets
1. Crypto-asset service providers that are authorised to provide advice on crypto-assets shall assess the compatibility of such crypto-assets with the needs of the clients and recommend them only when this is in the interest of the clients.
2. Crypto-asset service providers that are authorised to provide advice on crypto-assets shall ensure that natural persons giving advice or information about crypto-assets or a crypto-asset service on their behalf possess the necessary knowledge and experience to fulfil their obligations.
3. For the purposes of the assessment referred to in paragraph 1, crypto-asset service providers that are authorised to provide advice on crypto-assets shall request information about the client or prospective client’s knowledge of, and experience in crypto-assets, objectives, financial situation including the ability to bear losses and a basic understanding of risks involved in purchasing crypto-assets.
Crypto-asset service providers that are authorised to provide advice on crypto-assets shall warn clients that, due to their tradability, the value of crypto-assets may fluctuate.
4. Crypto-asset service providers that are authorised to provide advice on crypto-assets shall establish, maintain and implement policies and procedures to enable them to collect and assess all information necessary to conduct this assessment for each client. They shall take reasonable steps to ensure that the information collected about their clients or prospective clients is reliable.
5. Where clients do not provide the information required pursuant to paragraph 4, or where crypto-asset service providers that are authorised to provide advice on crypto-assets consider, on the basis of the information received under paragraph 4, that the prospective clients or clients have insufficient knowledge, crypto-asset service providers that are authorised to provide advice on crypto-assets shall inform those clients or prospective clients that the crypto-assets or crypto-asset services may be inappropriate for them and issue them a warning on the risks associated with crypto-assets. That risk warning shall clearly state the risk of losing the entirety of the money invested or converted into crypto-assets. Clients shall expressly acknowledge that they have received and understood the warning issued by the crypto-asset service provider concerned.
6. Crypto-asset service providers that are authorised to provide advice on crypto-assets shall for each client review the assessment referred to in paragraph 1 every two years after the initial assessment made in accordance with that paragraph.
7. Once the assessment referred to in paragraph 1 has been performed, crypto-asset
service providers that are authorised to provide advice on crypto-assets shall provide clients with a report summarising the advice given to those clients. That report shall be made and communicated to the clients in a durable medium. That report shall, as a minimum:
(a) specify the clients’ demands and needs;
(b) provide an outline of the advice given.
Chapter 4: Acquisition of crypto-asset service providers
Article 74
Assessment of intended acquisitions of crypto-asset service providers
1. Any natural or legal person or such persons acting in concert (the ‘proposed acquirer’), who have taken a decision either to acquire, directly or indirectly, a qualifying holding in a crypto-asset service provider or to further increase, directly or indirectly, such a qualifying holding in a crypto-asset service provider so that the proportion of the voting rights or of the capital held would reach or exceed 10 %, 20 %, 30 % or 50 % or so that the crypto-asset service provider would become its subsidiary (the ‘proposed acquisition’), shall notify the competent authority of that crypto-asset service provider thereof in writing indicating the size of the intended holding and the information required by the regulatory technical standards adopted by the Commission in accordance with Article 75(4).
2. Any natural or legal person who has taken a decision to dispose, directly or indirectly, of a qualifying holding in a crypto-asset service provider (the ‘proposed vendor’) shall first notify the competent authority in writing thereof, indicating the size of such holding. Such a person shall likewise notify the competent authority where it has taken a decision to reduce a qualifying holding so that the proportion of the voting rights or of the capital held would fall below 10 %, 20 %, 30 % or 50 % or so that the crypto-asset service provider would cease to be that person’s subsidiary.
3. Competent authorities shall, promptly and in any event within two working days following receipt of the notification required under paragraph 1 acknowledge receipt thereof in writing to the proposed acquirer.
4. Competent authorities shall assess the intended acquisition referred to in paragraph 1 and the information required by the regulatory technical standards adopted by the Commission in accordance with Article 75(4), within sixty working days from the date of the written acknowledgement of receipt referred to in paragraph 3.
When acknowledging receipt of the notification, competent authorities shall inform the persons referred to in paragraph 1 of the date on which the assessment will be finalised.
5. When performing the assessment referred to in paragraph 4, first subparagraph, competent authorities may request from the persons referred to in paragraph 1 any additional information that is necessary to complete that assessment. Such request shall be made before the assessment is finalised, and in any case no later than on the 50th working day from the date of the written acknowledgement of receipt referred to in paragraph 3. Such requests shall be made in writing and shall specify the additional information needed.
Competent authorities shall halt the assessment referred to in paragraph 4, first subparagraph, until they have received the additional information referred to in the first subparagraph of this paragraph, but for no longer than 20 working days. Any further requests by competent authorities for additional information or for clarification of the information received shall not result in an additional interruption of the assessment.
Competent authority may extend the interruption referred to in the second subparagraph of this paragraph up to 30 working days where the persons referred to in paragraph 1 are situated or regulated outside the Union.
6. Competent authorities that, upon completion of the assessment, decide to oppose the intended acquisition referred to in paragraph 1 shall notify the persons referred to in paragraph 1 thereof within two working days, but before the date referred to in paragraph 4, second subparagraph, extended, where applicable, in accordance with paragraph 5, second and third subparagraph. That notification shall provide the reasons for that decision.
7. Where competent authorities do not oppose the intended acquisition referred to in paragraph 1 before the date referred to in paragraph 4, second subparagraph, extended, where applicable, in accordance with paragraph 5, second and third subparagraph, the intended acquisition or intended disposal shall be deemed to be approved.
8. Competent authority may set a maximum period for concluding the intended acquisition referred to in paragraph 1, and extend that maximum period where appropriate.
Article 75
Content of the assessment of intended acquisitions of crypto-asset service providers
1. When performing the assessment referred to in Article 74(4), competent authorities shall appraise the suitability of the persons referred to in Article 74(1) and the financial soundness of intended acquisition against all of the following criteria:
(a) the reputation of the persons referred to in Article 74(1);
(b) the reputation and experience of any person who will direct the business of the crypto-asset service provider as a result of the intended acquisition or disposal;
(c) the financial soundness of the persons referred to in Article 74(1), in particular in relation to the type of business pursued and envisaged in the crypto-asset service provider in which the acquisition is intended;
(d) whether the crypto-asset service provider will be able to comply and continue to comply with the provisions of this Title;
(e) whether there are reasonable grounds to suspect that, in connection with the intended acquisition, money laundering or terrorist financing within the meaning of Article 1 of Directive (EU) 2015/849/EC is being or has been committed or attempted, or that the intended acquisition could increase the risk thereof.
2. Competent authorities may oppose the intended acquisition only where there are reasonable grounds for doing so on the basis of the criteria set out in paragraph 1 or
where the information provided in accordance with Article 74(4) is incomplete or false.
3. Member States shall not impose any prior conditions in respect of the level of holding that must be acquired nor allow their competent authorities to examine the proposed acquisition in terms of the economic needs of the market.
4. ESMA, in close cooperation with the EBA, shall develop draft regulatory technical standards to establish an exhaustive list of information that is necessary to carry out the assessment referred to in Article 74(4), first subparagraph and that shall be provided to the competent authorities at the time of the notification referred to in Article 74(1). The information required shall be relevant for a prudential assessment, be proportionate and be adapted to the nature of the persons and the intended acquisition referred to in Article 74(1).
ESMA shall submit those draft regulatory technical standards to the Commission by [please insert date 12 months after the entry into force of this Regulation].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
TITLE VI: Prevention of Market Abuse
involving crypto-
assets
Article 76
Scope of the rules on market abuse
The prohibitions and requirements laid down in this Title shall apply to acts carried out by any person and that concern crypto-assets that are admitted to trading on a trading platform for crypto-assets operated by an authorised crypto-asset service provider, or for which a request for admission to trading on such a trading platform has been made.
Article 77
Disclosure of inside information
Issuers of crypto-assets shall inform the public as soon as possible of inside information which concerns them, in a manner that enables the public to access that information in an easy manner and to assess that information in a complete, correct and timely manner.
Issuers of crypto-assets may, on their own responsibility, delay disclosure to the public of inside information provided that all of the following conditions are met:
1.
2.
(a) immediate disclosure is likely to prejudice the legitimate interests of the issuers;
(b) delay of disclosure is not likely to mislead the public;
(c) the issuers are able to ensure the confidentiality of that information.
Article 78
Prohibition of insider dealing
1. No person shall use inside information about crypto-assets to acquire those crypto-assets, or to dispose of those crypto-assets, either directly or indirectly and either for his or her own account or for the account of a third party.
2. No person that possesses inside information about crypto-assets shall:
(a) recommend, on the basis of that inside information, that another person acquires those crypto-assets or disposes of those crypto-assets to which that information relates, or induce that person to make such an acquisition or disposal;
(b) recommend, on the basis of that inside information, that another person cancels or amends an order concerning those crypto-assets, or induce that person to make such a cancellation or amendment.
Article 79
Prohibition of unlawful disclosure of inside information
No person that possesses inside information shall disclose such information to any other person, except where such disclosure is made in the normal exercise of an employment, a profession or duties.
1.
2.
Article 80
Prohibition of market manipulation
No person shall engage into market manipulation which shall include any of following activities:
(a)
unless the person entering into a transaction, placing an order to trade or engaging in any other behaviour establishes that such transaction, order or behaviour has been carried out for legitimate reasons, entering into a transaction, placing an order to trade or any other behaviour which:
i) gives, or is likely to give, false or misleading signals as to the supply of,
demand for, or price of, a crypto-asset;
ii) sets, or is likely to set, the price of one or several crypto-assets at an
abnormal or artificial level.
(b)
(c)
entering into a transaction, placing an order to trade or any other activity or behaviour which affects or is likely to affect the price of one or several crypto-assets, while employing a fictitious device or any other form of deception or contrivance;
disseminating information through the media, including the internet, or by any other means, which gives, or is likely to give, false or misleading signals as to the supply of, demand for, or price of a crypto-asset, or is likely to secure, the price of one or several crypto-assets, at an abnormal or artificial level, including the dissemination of rumours, where the person who made the dissemination knew, or ought to have known, that the information was false or misleading.
The following behaviour shall, inter alia, be considered as market manipulation:
(a)
(b)
(c)
securing a dominant position over the supply of or demand for a crypto-asset, which has, or is likely to have, the effect of fixing, directly or indirectly, purchase or sale prices or creates, or is likely to create, other unfair trading conditions;
the placing of orders to a trading platform for crypto-assets, including any cancellation or modification thereof, by any available means of trading, and which has one of the effects referred to in paragraph 1(a), by:
i) disrupting or delaying the functioning of the trading platform for crypto-
assets or engaging into any activities that are likely to have that effect;
ii) making it more difficult for other persons to identify genuine orders on
the trading platform for crypto-assets or engaging into any activities that are likely to have that effect, including by entering orders which result in the destabilisation of the normal functioning of the trading platform for crypto-assets;
iii) creating a false or misleading signal about the supply of, or demand for, or price of, a crypto-asset, in particular by entering orders to initiate or exacerbate a trend, or engaging into any activities that are likely to have that effect;
taking advantage of occasional or regular access to the traditional or electronic media by voicing an opinion about a crypto-asset, while having previously taken positions on that crypto-asset, and profiting subsequently from the
the
impact of the opinions voiced on the price of that crypto-asset, without having simultaneously disclosed that conflict of interest to the public in a proper and effective way.
Title VII: competent Authorities, the EBA and ESMA
Chapter 1: Powers of competent authorities and cooperation between competent authorities, the EBA and ESMA
Article 81
Competent authorities
1. Member States shall designate the competent authorities responsible for carrying out the functions and duties provided for in this Regulation and shall inform the EBA and ESMA thereof.
2. Where Member States designate more than one competent authority pursuant to paragraph 1, they shall determine their respective tasks and designate one of them as a single point of contact for cross-border administrative cooperation between competent authorities as well as with the EBA and ESMA.
3. ESMA shall publish on its website a list of the competent authorities designated in accordance with paragraph 1.
Article 82
Powers of competent authorities
1. In order to fulfil their duties under Titles II, III, IV and V of this Regulation,
competent authorities shall have, in accordance with national law, at least the following supervisory and investigative powers:
(a) to require crypto-asset service providers and the natural or legal persons that control them or are controlled by them, to provide information and documents;
(b) to require members of the management body of the crypto-asset service providers to provide information;
(c) to suspend, or to require a crypto-asset service provider to suspend, the provision of crypto-asset service for a maximum of 10 consecutive working days on any single occasion where there are reasonable grounds for believing that this Regulation has been infringed;
(d) to prohibit the provision of crypto-asset services where they find that this Regulation has been infringed;
(e) to disclose, or to require a crypto-asset servicer provider to disclose, all material information which may have an effect on the provision of the crypto-asset services in order to ensure consumer protection or the smooth operation of the market;
(f) to make public the fact that a crypto-asset service provider is failing to comply with its obligations;
(g) to suspend, or to require a crypto-asset service provider to suspend the provision of crypto-asset services where the competent authorities consider that the crypto-asset service provider’s situation is such that the provision of the crypto-asset service would be detrimental to consumers’ interests;
(h) to transfer existing contracts to another crypto-asset service provider in cases where a crypto-asset service provider’s authorisation is withdrawn in accordance with Article 56, subject to the agreement of the clients and the receiving crypto-asset service provider;
(i) where there is a reason to assume that a person is providing a crypto-asset
service without authorisation, to require information and documents from that person;
(j) where there is a reason to assume that a person is issuing asset-referenced
tokens or e-money tokens without authorisation, to require information and documents from that person;
(k) in urgent cases, where there is a reason to assume that a person is providing crypto-asset services without authorisation, to order the immediate cessation of the activity without prior warning or imposition of a deadline;
(l) to require issuers of crypto-assets, including asset-referenced tokens and e-
money tokens, or persons asking for admission to trading on a trading platform for crypto-assets, and the persons that control them or are controlled by them, to provide information and documents;
(m) to require members of the management body of the issuer of crypto-assets, including asset-referenced tokens and e-money tokens, or person asking for admission of such crypto-assets to trading on a trading platform for crypto-assets to provide information;
(n) to require issuers of crypto-assets, including asset-referenced tokens and e-money tokens, to include additional information in their crypto-asset white papers, where necessary for consumer protection or financial stability;
(o) to suspend an offer to the public of crypto-assets, including asset-referenced tokens or e-money tokens, or an admission to trading on a trading platform for crypto-assets for a maximum of 10 consecutive working days on any single occasion where there are reasonable grounds for suspecting that this Regulation has been infringed;
(p) to prohibit an offer to the public of crypto-assets, including asset-referenced tokens or e-money tokens, or an admission to trading on a trading platform for crypto-assets where they find that this Regulation has been infringed or where there are reasonable grounds for suspecting that it would be infringed;
(q) to suspend or require a trading platform for crypto-assets to suspend trading of the crypto-assets, including asset-referenced tokens or e-money tokens, for a maximum of 10 consecutive working days on any single occasion where there are reasonable grounds for believing that this Regulation has been infringed;
(r) to prohibit trading of crypto-assets, including asset-referenced tokens or e-
money tokens, on a trading platform for crypto-assets where they find that this Regulation has been infringed;
(s) to make public the fact that an issuer of crypto-assets, including an issuer of
asset-referenced tokens or e-money tokens, or a person asking for admission to trading on a trading platform for crypto-assets is failing to comply with its obligations;
(t)
2.
(u)
(v)
to disclose, or to require the issuer of crypto-assets, including an issuer of asset-referenced tokens or e-money tokens, to disclose, all material information which may have an effect on the assessment of the crypto-assets offered to the public or admitted to trading on a trading platform for crypto-assets in order to ensure consumer protection or the smooth operation of the market;
to suspend or require the relevant trading platform for crypto-assets to suspend the crypto-assets, including asset-referenced tokens or e-money tokens, from trading where it considers that the issuer’s situation is such that trading would be detrimental to consumers’ interests;
in urgent cases, where there is a reason to assume that a person is issuing asset-referenced tokens or e-money tokens without authorisation or a person is issuing crypto-assets without a crypto-asset white paper notified in accordance with Article 7, to order the immediate cessation of the activity without prior warning or imposition of a deadline;
to require the temporary cessation of any practice that the competent authority considers contrary to this Regulation;
to carry out on-site inspections or investigations at sites other than the private residences of natural persons, and for that purpose to enter premises in order to access documents and other data in any form, where a reasonable suspicion exists that documents and other data related to the subject-matter of the inspection or investigation may be relevant to prove an infringement of this Regulation.
Supervisory and investigative powers exercised in relation to e-money token issuers are without prejudice to powers granted to relevant competent authorities under national laws transposing Directive 2009/110/EC.
In order to fulfil their duties under Title VI of this Regulation, competent authorities shall have, in accordance with national law, at least the following supervisory and investigatory powers in addition to powers referred to in paragraph 1:
(w) (x)
(a)
(b)
(c)
(d) (e)
to access any document and data in any form, and to receive or take a copy thereof;
to require or demand information from any person, including those who are successively involved in the transmission of orders or conduct of the operations concerned, as well as their principals, and if necessary, to summon and question any such person with a view to obtain information;
to enter the premises of natural and legal persons in order to seize documents and data in any form where a reasonable suspicion exists that documents or data relating to the subject matter of the inspection or investigation may be relevant to prove a case of insider dealing or market manipulation infringing this Regulation;
to refer matters for criminal investigation;
to require, insofar as permitted by national law, existing data traffic records held by a telecommunications operator, where there is a reasonable suspicion of an infringement and where such records may be relevant to the investigation of an infringement of Articles 77, 78, 79 and 80;
(f)
to request the freezing or sequestration of assets, or both;
(g) to impose a temporary prohibition on the exercise of professional activity;
(h) to take all necessary measures to ensure that the public is correctly informed,
inter alia, by correcting false or misleading disclosed information, including by requiring an issuer of crypto-assets or other person who has published or disseminated false or misleading information to publish a corrective statement.
3. Where necessary under national law, the competent authority may ask the relevant judicial authority to decide on the use of the powers referred to in paragraphs 1 and 2.
4. Competent authorities shall exercise their functions and powers referred to in paragraphs 1 and 2 in any of the following ways:
(a) directly;
(b) in collaboration with other authorities;
(c) under their responsibility by delegation to such authorities;
(d) by application to the competent judicial authorities.
5. Member States shall ensure that appropriate measures are in place so that competent authorities have all the supervisory and investigatory powers that are necessary to fulfil their duties.
6. A person making information available to the competent authority in accordance with this Regulation shall not be considered to be infringing any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and shall not be subject to liability of any kind related to such notification.
Article 83
Cooperation between competent authorities
1. Competent authorities shall cooperate with each other for the purposes of this Regulation. They shall exchange information without undue delay and cooperate in investigation, supervision and enforcement activities.
Where Member States have chosen, in accordance with Article 92(1), to lay down criminal penalties for an infringement of this Regulation, they shall ensure that appropriate measures are in place so that competent authorities have all the necessary powers to liaise with judicial, prosecuting, or criminal justice authorities within their jurisdiction to receive specific information related to criminal investigations or proceedings commenced for infringements of this Regulation and to provide the same information to other competent authorities as well as to the EBA and ESMA, in order to fulfil their obligation to cooperate for the purposes of this Regulation.
2. A competent authority may refuse to act on a request for information or a request to cooperate with an investigation only in any of the following exceptional circumstances:
(a) where complying with the request is likely to adversely affect its own investigation, enforcement activities or a criminal investigation;
(b) where judicial proceedings have already been initiated in respect of the same actions and against the same natural or legal persons before the authorities of the Member State addressed;
(c) where a final judgment has already been delivered in relation to such natural or legal persons for the same actions in the Member State addressed.
3. Competent authorities shall, on request, without undue delay supply any information required for the purposes of this Regulation.
4. A competent authority may request assistance from the competent authority of another Member State with regard to on-site inspections or investigations.
Where a competent authority receives a request from a competent authority of another Member State to carry out an on-site inspection or an investigation, it may take any of the following actions:
(a) carry out the on-site inspection or investigation itself;
(b) allow the competent authority which submitted the request to participate in an on-site inspection or investigation;
(c) allow the competent authority which submitted the request to carry out the on-site inspection or investigation itself;
(d) share specific tasks related to supervisory activities with the other competent authorities.
5. The competent authorities may refer to ESMA in situations where a request for cooperation, in particular to exchange information, has been rejected or has not been acted upon within a reasonable time.
Without prejudice to Article 258 TFEU, ESMA may, in such situations, act in accordance with the power conferred on it under Article 19 of Regulation (EU) No 1095/2010.
6. By derogation to paragraph 5, the competent authorities may refer to the EBA in situations where a request for cooperation, in particular to exchange information, concerning an issuer of asset-referenced tokens or e-money tokens, or crypto-asset services related to asset-referenced tokens or e-money tokens, has been rejected or has not been acted upon within a reasonable time.
Without prejudice to Article 258 TFEU, the EBA may, in such situations, act in accordance with the power conferred on it under Article 19 of Regulation (EU) No 1093/2010.
7. Competent authorities shall closely coordinate their supervision in order to identify and remedy infringements of this Regulation, develop and promote best practices, facilitate collaboration, foster consistency of interpretation, and provide cross-jurisdictional assessments in the event of any disagreements.
For the purpose of the first sub-paragraph, the EBA and ESMA shall fulfil a coordination role between competent authorities and across colleges as referred to in Articles 99 and 101 with a view of building a common supervisory culture and consistent supervisory practices, ensuring uniform procedures and consistent approaches, and strengthening consistency in supervisory outcomes, especially with regard to supervisory areas which have a cross-border dimension or a possible crossborder impact.
8. Where a competent authority finds that any of the requirements under this Regulation has not been met or has reason to believe that to be the case, it shall inform the
competent authority of the entity or entities suspected of such infringement of its findings in a sufficiently detailed manner.
9. ESMA, after consultation of the EBA, shall develop draft regulatory technical standards to specify the information to be exchanged between competent authorities in accordance with paragraph 1.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
ESMA shall submit those draft regulatory technical standards to the Commission by … [please insert date 12 months after entry into force].
10. ESMA, after consultation of the EBA, shall develop draft implementing technical standards to establish standard forms, templates and procedures for the cooperation and exchange of information between competent authorities.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
ESMA shall submit those draft implementing technical standards to the Commission by … [please insert date 12 months after the date of entry into force].
Article 84
Cooperation with the EBA and ESMA
1. For the purpose of this Regulation, the competent authorities shall cooperate closely with ESMA in accordance with Regulation (EU) No 1095/2010 and with the EBA in accordance with Regulation (EU) No 1093/2010. They shall exchange information in order to carry out their duties under this Chapter and Chapter 2 of this Title.
2. A requesting competent authority shall inform the EBA and ESMA of any request referred to in the Article 83(4).
In the case of an on-site inspection or investigation with cross-border effect, ESMA shall, where requested to do so by one of the competent authorities, coordinate the inspection or investigation. Where the on-site inspection or investigation with crossborder effects concerns an issuer of asset-referenced tokens or e-money tokens, or crypto-asset services related to asset-referenced tokens or e-money tokens, the EBA where requested to do so by one of the competent authorities, coordinate the inspection or investigation.
3. The competent authorities shall without delay provide the EBA and ESMA with all information necessary to carry out their duties, in accordance with Article 35 of Regulation (EU) No 1093/2010 and Article 35 of Regulation (EU) No 1095/2010 respectively.
4. In order to ensure uniform conditions of application of this Article, ESMA, in close cooperation with the EBA, shall develop draft implementing technical standards to establish standard forms, templates and procedures for the cooperation and exchange of information between competent authorities and with the EBA and ESMA.
ESMA shall submit those draft implementing technical standards to the Commission by ... [please insert date 12 months after the date of entry into force].
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
Article 85
Cooperation with other authorities
Where an issuer of crypto-assets, including asset-referenced tokens or e-money tokens, or a crypto-asset service provider engages in activities other than those covered by this Regulation, the competent authorities shall cooperate with the authorities responsible for the supervision or oversight of such other activities as provided for in the relevant Union or national law, including tax authorities.
Article 86
Notification duties
Member States shall notify the laws, regulations and administrative provisions implementing this Title, including any relevant criminal law provisions, to the Commission, the EBA and ESMA by… [please insert date 12 months after the date of entry into force]. Member States shall notify the Commission and ESMA without undue delay of any subsequent amendments thereto.
Article 87
Professional secrecy
1. All information exchanged between the competent authorities under this Regulation that concerns business or operational conditions and other economic or personal affairs shall be considered to be confidential and shall be subject to the requirements of professional secrecy, except where the competent authority states at the time of communication that such information is permitted to be disclosed or such disclosure is necessary for legal proceedings.
2. The obligation of professional secrecy shall apply to all natural or legal persons who work or who have worked for the competent authorities. Information covered by professional secrecy may not be disclosed to any other natural or legal person or authority except by virtue of provisions laid down by Union or national law.
Article 88
Data protection
With regard to the processing of personal data within the scope of this Regulation, competent authorities shall carry out their tasks for the purposes of this Regulation in accordance with Regulation (EU) 2016/67968.
With regard to the processing of personal data by the EBA and ESMA within the scope of this Regulation, it shall comply with Regulation (EU) 2018/172569.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1)
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions,
68
69
measures
Article 89
Precautionary
1. Where the competent authority of a host Member State has clear and demonstrable grounds for believing that irregularities have been committed by a crypto-asset service provider or by an issuer of crypto-assets, including asset-referenced tokens or e-money tokens, it shall notify the competent authority of the home Member State and ESMA thereof.
Where the irregularities concerns an issuer of asset-referenced tokens or e-money tokens, or a crypto-asset service related to asset-referenced tokens or e-money tokens, the competent authorities of the host Member States shall also notify the EBA.
2. Where, despite the measures taken by the competent authority of the home Member State, the crypto-asset service provider or the issuer of crypto-assets persists in infringing this Regulation, the competent authority of the host Member State, after informing the competent authority of the home Member State, ESMA and where appropriate the EBA, shall take all appropriate measures in order to protect consumers and shall inform the Commission, ESMA and where appropriate the EBA, thereof without undue delay.
3. Where a competent authority disagrees with any of the measures taken by another competent authority pursuant to paragraph 2 of this Article, it may bring the matter to the attention of ESMA. ESMA may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010.
By derogation to the first subparagraph, where the measures concerns an issuer of asset-referenced tokens or e-money tokens, or a crypto-asset service related to asset-referenced tokens or e-money tokens, the competent authority may bring the matter to the attention of the EBA. The EBA may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1093/2010.
Article 90
Cooperation with third countries
1. The competent authorities of Member States shall, where necessary, conclude cooperation arrangements with supervisory authorities of third countries concerning the exchange of information with supervisory authorities in third countries and the enforcement of obligations arising under this Regulation in third countries. Those cooperation arrangements shall ensure at least an efficient exchange of information that allows the competent authorities to carry out their duties under this Regulation.
A competent authority shall inform the EBA, ESMA and the other competent authorities where it proposes to enter into such an arrangement.
2. ESMA, in close cooperation with the EBA, shall, where possible, facilitate and coordinate the development of cooperation arrangements between the competent authorities and the relevant supervisory authorities of third countries.
ESMA, in close cooperation with the EBA, shall develop draft regulatory technical standards containing a template document for cooperation arrangements that are to be used by competent authorities of Member States where possible.
bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (Text with EEA relevance) OJ L 295, 21.11.2018, p. 39–98
ESMA shall submit those draft regulatory technical standards to the Commission by [please insert date 12 months after entry into force].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
3. ESMA, in close cooperation with EBA, shall also, where possible, facilitate and coordinate the exchange between competent authorities of information obtained from supervisory authorities of third countries that may be relevant to the taking of measures under Chapter 2.
4. The competent authorities shall conclude cooperation arrangements on exchange of information with the supervisory authorities of third countries only where the information disclosed is subject to guarantees of professional secrecy which are at least equivalent to those set out in Article 87. Such exchange of information shall be intended for the performance of the tasks of those competent authorities.
Article 91
Complaint handling by competent authorities
1. Competent authorities shall set up procedures which allow clients and other interested parties, including consumer associations, to submit complaints to the competent authorities with regard to issuer of crypto-assets, including asset-referenced tokens or e-money tokens, and crypto-asset service providers’ alleged infringements of this Regulation. In all cases, complaints should be accepted in written or electronic form and in an official language of the Member State in which the complaint is submitted or in a language accepted by the competent authorities of that Member State.
2. Information on the complaints procedures referred to in paragraph 1 shall be made available on the website of each competent authority and communicated to the EBA and ESMA. ESMA shall publish the references to the complaints procedures related sections of the websites of the competent authorities in its crypto-asset register referred to in Article 57.
Chapter 2: administrative measures and sanctions by competent
authorities
Article 92
Administrative sanctions and other administrative measures
1. Without prejudice to any criminal sanctions and without prejudice to the supervisory
powers of competent authorities under Article 82, Member States shall, in accordance with national law, provide for competent authorities to have the power to take appropriate administrative sanctions and other administrative measures in relation to at least the following infringements:
(a) infringements of Articles 4 to 14;
(b) infringements of Articles 17 and 21, Articles 23 to 36 and Article 42;
(c) infringements of Articles 43 to 49, except Article 47;
(d) infringements of Article 56 and Articles 58 to 73;
2.
(e) infringements of Articles 76 to 80;
(f) failure to cooperate or to comply with an investigation, with an inspection or with a request as referred to in Article 82(2).
Member States may decide not to lay down rules for administrative sanctions as referred to in the first subparagraph where the infringements referred to in points (a), (b), (c), (d) or (e) of that subparagraph are already subject to criminal sanctions in their national law by [please insert date 12 months after entry into force]. Where they so decide, Member States shall notify, in detail, to the Commission, ESMA and to EBA, the relevant parts of their criminal law.
By [please insert date 12 months after entry into force], Member States shall notify, in detail, the rules referred to in the first and second subparagraph to the Commission, the EBA and ESMA. They shall notify the Commission, ESMA and EBA without delay of any subsequent amendment thereto.
Member States shall, in accordance with national law, ensure that competent authorities have the power to impose at least the following administrative sanctions and other administrative measures in relation to the infringements listed in point (a) of paragraph 1:
(a) (b) (c)
(d)
3.
a public statement indicating the natural person or the legal entity responsible and the nature of the infringement in accordance with Article 82;
an order requiring the natural person or legal entity responsible to cease the conduct constituting the infringement;
maximum administrative pecuniary sanctions of at least twice the amount of the profits gained or losses avoided because of the infringement where those can be determined;
in the case of a legal person, maximum administrative pecuniary sanctions of at least EUR 5 000 000, or, in the Member States whose currency is not the euro, the corresponding value in the national currency on [please insert date of entry into force of this Regulation], or 3 % of the total annual turnover of that legal person according to the last available financial statements approved by the management body. Where the legal person is a parent undertaking or a subsidiary of a parent undertaking which is required to prepare consolidated financial accounts in accordance with Directive 2013/34/EU70, the relevant total annual turnover shall be the total annual turnover or the corresponding type of income in accordance with the relevant Union law in the area of accounting according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking.
in the case of a natural person, maximum administrative pecuniary sanctions of at least EUR 700 000, or, in the Member States whose currency is not the euro, the corresponding value in the national currency on [please insert date of entry into force of this Regulation].
Member States shall, in accordance with national law, ensure that competent authorities have the power to impose at least the following administrative sanctions
(e)
Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).
70
4.
5.
and other administrative measures in relation to the infringements listed in point (b) of paragraph 1:
(a) a public statement indicating the natural person or the legal entity responsible and the nature of the infringement;
(b) an order requiring the natural person or legal entity responsible to cease the conduct constituting the infringement;
(c) maximum administrative pecuniary sanctions of at least twice the amount of the profits gained or losses avoided because of the infringement where those can be determined;
(d) in the case of a legal person, maximum administrative pecuniary sanctions of at least 15% of the total annual turnover of that legal person according to the last available financial statements approved by the management body.
Member States shall, in accordance with national law, ensure that competent authorities have the power to impose at least the following administrative sanctions and other administrative measures in relation to the infringements listed in point (c) of paragraph 1:
(a) a public statement indicating the natural person or the legal entity responsible and the nature of the infringement;
(b) an order requiring the natural person or legal entity responsible to cease the conduct constituting the infringement;
(c) maximum administrative pecuniary sanctions of at least twice the amount of the profits gained or losses avoided because of the infringement where those can be determined;
(d) in the case of a legal person, maximum administrative pecuniary sanctions of at least 15% of the total annual turnover of that legal person according to the last available financial statements approved by the management body.
Member States shall, in accordance with their national law, ensure that competent authorities have the power to impose at least the following administrative penalties and other administrative measures in relation to the infringements listed in point (d) of the first subparagraph of paragraph 1:
(a) a public statement indicating the natural or legal person responsible for, and the nature of, the infringement;
(b) an order requiring the natural or legal person to cease the infringing conduct and to desist from a repetition of that conduct;
(c) a ban preventing any member of the management body of the legal person responsible for the infringement, or any other natural person held responsible for the infringement, from exercising management functions in such undertakings;
(d) maximum administrative fines of at least twice the amount of the benefit derived from the infringement where that benefit can be determined, even if it exceeds the maximum amounts set out in point (e);
(e) in the case of a legal person, maximum administrative fines of at least EUR 500 000, or, in the Member States whose currency is not the euro, the corresponding value in the national currency on ... [please insert date of entry
6.
into force of this Regulation] or of up to 5% of the total annual turnover of that legal person according to the last available financial statements approved by the management body. Where the legal person is a parent undertaking or a subsidiary of a parent undertaking which is required to prepare consolidated financial statements in accordance with Directive 2013/34/EU of the European Parliament and of the Council, the relevant total annual turnover shall be the total annual turnover or the corresponding type of income in accordance with the relevant Union law in the area of accounting according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking;
(f) in the case of a natural person, maximum administrative fines of at least EUR
500 000, or, in the Member States whose currency is not the euro, the corresponding value in the national currency on ... [please insert date of entry into force of this Regulation].
Member States shall, in accordance with national law, ensure that competent authorities have the power to impose at least the following administrative sanctions and to take at least the following administrative measures in the event of the infringements referred to in point (e) of the first subparagraph of paragraph 1:
(a) (b) (c) (d) (e)
(f)
(g) (h) (i)
an order requiring the person responsible for the infringement to cease the conduct and to desist from a repetition of that conduct;
the disgorgement of the profits gained or infringement insofar as they can be determined;
losses avoided
due to the
a public warning which indicates the person responsible for the infringement and the nature of the infringement;
withdrawal provider;
suspension
of the
authorisation
of a
crypto-asset service
a temporary ban of any member of the management body of the crypto-asset service provider or any other natural person, who is held responsible for the infringement, from exercising management functions in the crypto-asset service provider;
in the event of repeated infringements of Articles 78, 79 or 80, a permanent ban of any member of the management body of a crypto-asset service provider or any other natural person who is held responsible for the infringement, from exercising management functions in the crypto-asset service provider;
a temporary ban of any member of the management body of a crypto-asset service provider or any other natural person who is held responsible for the infringement, from dealing on own account;
maximum administrative pecuniary sanctions of at least 3 times the amount of the profits gained or losses avoided because of the infringement, where those can be determined;
in respect of a natural person, maximum administrative pecuniary sanctions of at least EUR 5 000 000 or in the Member States whose currency is not the euro, the corresponding value in the national currency on [please insert date of entry into force of this Regulation];
or
(j) in respect of legal persons, maximum administrative pecuniary sanctions of at
least EUR 15 000 000 or 15 % of the total annual turnover of the legal person according to the last available accounts approved by the management body, or in the Member States whose currency is not the euro, the corresponding value in the national currency on [please insert date of entry into force of this Regulation]. Where the legal person is a parent undertaking or a subsidiary of a parent undertaking which is required to prepare consolidated financial statements in accordance with Directive 2013/34/EU of the European Parliament and of the Council, the relevant total annual turnover shall be the total annual turnover or the corresponding type of income in accordance with the relevant Union law in the area of accounting according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking.
7. Member States may provide that competent authorities have powers in addition to
those referred to in paragraphs 2 to 6 and may provide for higher levels of sanctions than those established in those paragraphs, in respect of both natural and legal persons responsible for the infringement.
Article 93
Exercise of supervisory powers and powers to impose penalties
1. Competent authorities, when determining the type and level of an administrative penalty or other administrative measures to be imposed in accordance with Article 92, shall take into account the extent to which the infringement is intentional or results from negligence and all other relevant circumstances, including, where appropriate:
(a) the gravity and the duration of the infringement;
(b) the degree of responsibility of the natural or legal person responsible for the infringement;
(c) the financial strength of the natural or legal person responsible for the infringement, as indicated by the total turnover of the responsible legal person or the annual income and net assets of the responsible natural person;
(d) the importance of profits gained or losses avoided by the natural or legal person responsible for the infringement, insofar as those can be determined;
(e) the losses for third parties caused by the infringement, insofar as those can be determined;
(f) the level of cooperation of the natural or legal person responsible for the infringement with the competent authority, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person;
(g) previous infringements by the natural or legal person responsible for the infringement;
(h) measures taken by the person responsible for the infringement to prevent its repetition;
(i) the impact of the infringement on consumers or investors’ interests.
2. In the exercise of their powers to impose administrative penalties and other administrative measures under Article 92, competent authorities shall cooperate
closely to ensure that the exercise of their supervisory and investigative powers, and the administrative penalties and other administrative measures that they impose, are effective and appropriate under this Regulation. They shall coordinate their action in order to avoid duplication and overlaps when exercising their supervisory and investigative powers and when imposing administrative penalties and other administrative measures in cross-border cases.
Article 94
Right of appeal
Member States shall ensure that any decision taken under this Regulation is properly reasoned and is subject to the right of appeal before a tribunal. The right of appeal before a tribunal shall also apply where, in respect of an application for authorisation as a crypto-asset service provider which provides all the information required, no decision is taken within six months of its submission.
Article 95
Publication of decisions
1. A decision imposing administrative penalties and other administrative measures for infringement of this Regulation shall be published by competent authorities on their official websites immediately after the natural or legal person subject to that decision has been informed of that decision. The publication shall include at least information on the type and nature of the infringement and the identity of the natural or legal persons responsible. That obligation does not apply to decisions imposing measures that are of an investigatory nature.
2. Where the publication of the identity of the legal entities, or identity or personal data of natural persons, is considered by the competent authority to be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data, or where such publication would jeopardise an ongoing investigation, competent authorities shall take one of the following actions:
(a) defer the publication of the decision to impose a penalty or a measure until the moment where the reasons for non-publication cease to exist;
(b) publish the decision to impose a penalty or a measure on an anonymous basis in a manner which is in conformity with national law, where such anonymous publication ensures an effective protection of the personal data concerned;
(c) not publish the decision to impose a penalty or measure in the event that the options laid down in points (a) and (b) are considered to be insufficient to ensure:
i) that the stability of financial markets is not jeopardised;
ii) the proportionality of the publication of such a decision with regard to
measures which are deemed to be of a minor nature.
In the case of a decision to publish a penalty or measure on an anonymous basis, as referred to in point (b) of the first subparagraph, the publication of the relevant data may be deferred for a reasonable period where it is foreseen that within that period the reasons for anonymous publication shall cease to exist.
3. Where the decision to impose a penalty or measure is subject to appeal before the relevant judicial or other authorities, competent authorities shall publish,
immediately, on their official website such information and any subsequent information on the outcome of such appeal. Moreover, any decision annulling a previous decision to impose a penalty or a measure shall also be published.
4. Competent authorities shall ensure that any publication in accordance with this
Article remains on their official website for a period of at least five years after its publication. Personal data contained in the publication shall be kept on the official website of the competent authority only for the period which is necessary in accordance with the applicable data protection rules.
Article 96
Reporting of penalties and administrative measures to ESMA and EBA
1. The competent authority shall, on an annual basis, provide ESMA and EBA with aggregate information regarding all administrative penalties and other administrative measures imposed in accordance with Article 92. ESMA shall publish that information in an annual report.
Where Member States have chosen, in accordance with Article 92(1), to lay down criminal penalties for the infringements of the provisions referred to in that paragraph, their competent authorities shall provide the EBA and ESMA annually with anonymised and aggregated data regarding all criminal investigations undertaken and criminal penalties imposed. ESMA shall publish data on criminal penalties imposed in an annual report.
2. Where the competent authority has disclosed administrative penalties, other administrative measures or criminal penalties to the public, it shall simultaneously report them to ESMA.
3. Competent authorities shall inform the EBA and ESMA of all administrative penalties or other administrative measures imposed but not published, including any appeal in relation thereto and the outcome thereof. Member States shall ensure that competent authorities receive information and the final judgment in relation to any criminal penalty imposed and submit it to the EBA and ESMA. ESMA shall maintain a central database of penalties and administrative measures communicated to it solely for the purposes of exchanging information between competent authorities. That database shall be only accessible to the EBA and ESMA, and the competent authorities and it shall be updated on the basis of the information provided by the competent authorities.
Article 97
Reporting of breaches and protection of reporting persons
Directive (EU) 2019/193771 shall apply to the reporting of breaches of this Regulation and the protection of persons reporting such breaches.
Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law OJ L 305, 26.11.2019, p. 17.
7
Chapter 3: Supervisory responsibilities of EBA on issuers of significant asset-referenced tokens and significant e-money tokens
and colleges of supervisors
Article 98
Supervisory responsibilities of EBA on issuers of significant asset-referenced tokens and
issuers of significant e-money tokens
1. Where an asset-referenced token has been classified as significant in accordance with Article 39 or Article 40, the issuer of such asset-referenced tokens shall carry out their activities under the supervision of the EBA.
The EBA shall exercise the powers of competent authorities conferred by Articles 21, 37 and 38 as regards issuers of significant asset-referenced tokens.
2. Where an issuer of significant asset-referenced tokens provide crypto-asset services or issue crypto-assets that are not significant asset-referenced tokens, such services and activities shall remain supervised by the competent authority of the home Member State.
3. Where an asset-referenced token has been classified as significant in accordance with Article 39, the EBA shall conduct a supervisory reassessment to ensure that issuers of significant asset-referenced tokens comply with the requirements under Title III.
4. Where an e-money token has been classified as significant in accordance with Articles 50 or 51, the EBA shall be responsible of the compliance of the issuer of such asset-significant e-money tokens with the requirements laid down in Article 52.
Article 99
Colleges for issuers of significant asset-referenced tokens
1. Within 30 calendar days of a decision to classify an asset-referenced token as significant, the EBA shall establish, manage and chair a consultative supervisory college for each issuer of significant asset-referenced tokens to facilitate the exercise of its supervisory tasks under this Regulation.
2. The college shall consist of:
(a) the EBA, as the chair of the college;
(b) ESMA;
(c) the competent authority of the home Member State where the issuer of significant asset-referenced tokens is established;
(d) the competent authorities of the most relevant credit institutions or crypto-asset service providers ensuring the custody of the reserve assets in accordance with Article 33;
(e) where applicable, the competent authorities of the most relevant trading platforms for crypto-assets where the significant asset-referenced tokens are admitted to trading;
(f) where applicable, the competent authorities of the most relevant crypto-asset service providers in charge of ensuring the liquidity of the significant asset-referenced tokens in accordance with the first paragraph of Article 35(4);
3.
4.
5.
(g) where applicable, the competent authorities of the entities ensuring the functions as referred to in Article 30(5), point (h);
(h) where applicable, the competent authorities of the most relevant crypto-asset service providers providing the crypto-asset service referred to in Article 3(1) point (10) in relation with the significant asset-referenced tokens;
(i) the ECB;
(j) where the issuer of significant asset-referenced tokens is established in a
Member State the currency of which is not euro, or where a currency that is not euro is included in the reserve assets, the national central bank of that Member State;
(k) relevant supervisory authorities of third countries with which the EBA has
concluded an administrative agreement in accordance with Article 108.
The competent authority of a Member State which is not a member of the college may request from the college any information relevant for the performance of its supervisory duties.
The college shall, without prejudice to the responsibilities of competent authorities under this Regulation, ensure:
(a) (b) (c)
(d)
the preparation of the non-binding opinion referred to in Article 100;
the exchange of information in accordance with Article 107;
agreement on the voluntary entrustment of tasks among its members, including delegation of tasks under Article 120;
the coordination of supervisory examination programmes based on the risk assessment carried out by the issuer of significant asset-referenced tokens in accordance with Article 30(9).
In order to facilitate the performance of the tasks assigned to colleges pursuant to the first subparagraph, members of the college referred to in paragraph 2 shall be entitled to contribute to the setting of the agenda of the college meetings, in particular by adding points to the agenda of a meeting.
The establishment and functioning of the college shall be based on a written agreement between all its members.
The agreement shall determine the practical arrangements for the functioning of the college, including detailed rules on:
(a) voting procedures as referred in Article 100(4);
(b) the procedures for setting the agenda of college meetings;
(c) the frequency of the college meetings;
(d) the format and scope of the information to be provided by the EBA to the college members, especially with regard to the information to the risk assessment as referred to in Article 30(9);
(e) the appropriate minimum timeframes for the assessment of the relevant documentation by the college members;
(f) the modalities of communication between college members.
The agreement may also determine tasks to be entrusted to the EBA or another member of the college.
6. In order to ensure the consistent and coherent functioning of colleges, the EBA shall,
in cooperation with ESMA and the European System of Central Banks, develop draft regulatory standards specifying the conditions under which the entities referred to in points (d) to (h) of paragraph 2 are to be considered as the most relevant and the details of the practical arrangements referred to in paragraph 5.
The EBA shall submit those draft regulatory standards to the Commission by [please insert date 12 months after the entry into force].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Article 10 to 14 of Regulation (EU) No 1093/2010.
Article 100
Non-binding opinions of the colleges for issuers of significant asset-referenced tokens
1. The college for issuers of significant asset-referenced tokens may issue a non-
binding opinion on the following:
(a) the supervisory reassessment as referred to in Article 98(3);
(b)
any decision to require an issuer of significant asset-referenced tokens to hold a higher amount of own funds or to permit such an issuer to hold a lower amount of own funds in accordance with Article 41(4);
(c) any update of the orderly wind-down plan of an issuer of significant asset-referenced tokens pursuant to Article 42;
(d) any change to the issuer of significant asset-referenced tokens’ business model pursuant to Article 21(1);
(e) a draft amended crypto-asset white paper in accordance with Article 21(2);
(f) any measures envisaged in accordance with Article 21(3);
(g) any envisaged supervisory measures pursuant to Article 112;
(h) any envisaged agreement of exchange of information with a third-country supervisory authority with Article 108;
(i) any delegation of supervisory tasks from the EBA to a competent authority
pursuant to Article 120;
(j) any envisaged change in the authorisation of, or any envisaged supervisory
measure on, the entities and crypto-asset service providers referred to in Article 99(2), points (d) to (h).
2. Where the college issues an opinion accordance with paragraph 1, at the request of any member of the college and upon adoption by a majority of the college in accordance with paragraph 4, the opinion may include any recommendations aimed at addressing shortcomings of the envisaged action or measure envisaged by the EBA or the competent authorities.
3. The EBA shall facilitate the adoption of the opinion in accordance with its general coordination function under Article 31 of Regulation (EU) No 1093/2010.
4. A majority opinion of the college shall be based on the basis of a simple majority of its members.
For colleges up to and including 12 members, a maximum of two college members belonging to the same Member State shall have a vote and each voting member, shall have one vote. For colleges with more than 12 members, a maximum of three members belonging to the same Member State shall have a vote and each voting member shall have one vote.
Where the ECB is a member of the college pursuant to Article 99(2), point (i), it shall have two votes.
Supervisory authorities of third countries referred to in Article 99(2), point (k), shall have no voting right on the opinion of the college.
5. The EBA and competent authorities shall duly consider the opinion of the college reached in accordance with paragraph 1, including any recommendations aimed at addressing shortcomings of the envisaged action or supervisory measure envisaged on an issuer of significant asset-referenced tokens or on the entities and crypto-asset service providers referred to in points (d) to (h) of Article 99(2). Where the EBA or a competent authority does not agree with an opinion of the college, including any recommendations aimed at addressing shortcomings of the envisaged action or supervisory measure envisaged, its decision shall contain full reasons and an explanation of any significant deviation from that opinion or recommendations.
Article 101
College for issuers of significant electronic money tokens
1. Within 30 calendar days of a decision to classify an e-money token as significant, the EBA shall establish, manage and chair a consultative supervisory college for each issuer of significant e-money tokens to facilitate the exercise of supervisory tasks under this Regulation.
2. The college shall consist of:
(a) the EBA, as the Chair;
(b) the competent authority of the home Member State where the issuer of e-money token has been authorised either as a credit institution or as an electronic money institution;
(c) ESMA;
(d) the competent authorities of the most relevant credit institutions ensuring the custody of the funds received in exchange of the significant e-money tokens;
(e) the competent authorities of the most relevant payment institutions authorised in accordance with Article 11 of Directive (EU) 2015/2366 and providing payment services in relation to the significant e-money tokens;
(f) where applicable, the competent authorities of the most relevant trading platforms for crypto-assets where the significant e-money tokens are admitted to trading;
(g) where applicable, the competent authorities of the most relevant crypto-asset service providers providing the crypto-asset service referred to in Article 3(1) point (10) in relation to significant e-money tokens;
(h) where the issuer of significant e-money tokens is established in a Member State the currency of which is euro, or where the significant e-money token is referencing euro, the ECB;
(i) where the issuer of significant e-money tokens is established in a Member State
the currency of which is not euro, or where the significant e-money token is referencing a currency which is not the euro, the national central bank of that Member State;
(j) relevant supervisory authorities of third countries with which the EBA has
concluded an administrative agreement in accordance with Article 108.
3. The competent authority of a Member State which is not a member of the college may request from the college any information relevant for the performance of its supervisory duties.
4. The college shall, without prejudice to the responsibilities of competent authorities under this Regulation, ensure:
(a) the preparation of the non-binding opinion referred to in Article 102;
(b) the exchange of information in accordance with this Regulation;
(c) agreement on the voluntary entrustment of tasks among its members, including delegation of tasks under Article 120.
In order to facilitate the performance of the tasks assigned to colleges pursuant to the first subparagraph, members of the college referred to in paragraph 2 shall be entitled to contribute to the setting of the agenda of the college meetings, in particular by adding points to the agenda of a meeting.
5. The establishment and functioning of the college shall be based on a written agreement between all its members.
The agreement shall determine the practical arrangements for the functioning of the college, including detailed rules on:
(a) voting procedures as referred to in Article 102;
(b) the procedures for setting the agenda of college meetings;
(c) the frequency of the college meetings;
(d) (e) (f)
the format and scope of the information to be provided by the competent authority of the issuer of significant e-money tokens to the college members;
the appropriate minimum timeframes for the assessment of the relevant documentation by the college members;
the modalities of communication between college members.
The agreement may also determine tasks to be entrusted to the competent authority of the issuer of significant e-money tokens or another member of the college.
6. In order to ensure the consistent and coherent functioning of colleges, the EBA shall,
in cooperation with ESMA and the European System of Central Banks, develop draft regulatory standards specifying the conditions under which the entities referred to in points (d) to (g) of paragraph 2 are to be considered as the most relevant and the details of the practical arrangements referred to in paragraph 5.
The EBA shall submit those draft regulatory standards to the Commission by [please insert date 12 months after the entry into force].
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Article 10 to 14 of Regulation (EU) No 1093/2010.
Article 102
Non-binding opinions of the college for issuers of significant electronic money tokens
1. The college for issuers of significant e-money tokens may issue a non-binding opinion on the following:
(a) any decision to require an issuer of significant e-money tokens to hold a higher amount of own funds or to permit such an issuer to hold a lower amount of own funds in accordance with Articles 31 and 41(4);
(b) any update of the orderly wind-down plan of an issuer of significant e-money tokens pursuant to Article 42;
(c) a draft amended crypto-asset white paper in accordance with Article 46(10);
(d) any envisaged withdrawal of authorisation for an issuer of significant e-money tokens as a credit institution or pursuant to Directive 2009/110/EC;
(e) any envisaged supervisory measures pursuant to Article 112;
(f) any envisaged agreement of exchange of information with a third-country supervisory authority;
(g) any delegation of supervisory tasks from the competent authority of the issuer of significant e-money tokens to the EBA or another competent authority, or from the EBA to the competent authority in accordance with Article 120;
(h) any envisaged change in the authorisation of, or any envisaged supervisory measure on, the entities and crypto-asset service providers referred to in points (d) to (g) of Article 101(2).
2. Where the college issues an opinion in accordance with paragraph 1, at the request of any member of the college and upon adoption by a majority of the college in accordance with paragraph 4, the opinion may include any recommendations aimed at addressing shortcomings of the envisaged action or measure envisaged by the competent authorities or by the EBA.
3. The EBA shall facilitate the adoption of the opinion in accordance with its general coordination function under Article 31 of Regulation (EU) No 1093/2010.
4. A
majority opinion of the college shall be based on the basis of a simple majority of its members.
For colleges up to and including 12 members, a maximum of two college members belonging to the same Member State shall have a vote and each voting member, shall have one vote. For colleges with more than 12 members, a maximum of three members belonging to the same Member State shall have a vote and each voting member shall have one vote.
Where the ECB is a member of the college pursuant to point (h) of Article 101(2), it shall have 2 votes.
Supervisory authorities of third countries referred to in Article 101(2) point (j) shall have no voting right on the opinion of the college.
5. The competent authority of the issuer of significant e-money tokens, EBA or any
competent authority for the entities and crypto-asset service providers referred to in points (d) to (g) of Article 101(2) shall duly consider the opinion of the college reached in accordance with paragraph 1, including any recommendations aimed at addressing shortcomings of any envisaged action or supervisory measure. Where the EBA or a competent authority do not agree with an opinion of the college, including any recommendations aimed at addressing shortcomings of the envisaged action or supervisory measure, its decision shall contain full reasons and an explanation of any significant deviation from that opinion or recommendations.
Chapter 4: the EBA’s powers and competences on issuers of significant asset-referenced tokens and issuers of significant e-money tokens
Article 103
Exercise of powers referred to in Articles 104 to 107
The powers conferred on the EBA by Articles 104 to 107, or on any official or other person authorised by the EBA, shall not be used to require the disclosure of information which is subject to legal privilege.
Article 104
Request for information
1. In order to carry out its duties under Article 98, the EBA may by simple request or
by decision require the following persons to provide all information necessary to enable the EBA to carry out its duties under this Regulation:
(a) an issuer of significant asset-referenced tokens or a person controlling or being directly or indirectly controlled by an issuer of significant asset-referenced tokens;
(b) any third parties as referred to in Article 30(5), point (h) with which the issuers of significant asset-referenced tokens has a contractual arrangement;
(c) any crypto-assets service provider as referred to in Article 35(4) which provide liquidity for significant asset-referenced tokens;
(d) credit institutions or crypto-asset service providers ensuring the custody of the reserve assets in accordance with Article 33;
(e) an issuer of significant e-money tokens or a person controlling or being directly or indirectly controlled by an issuer of significant e-money tokens;
(f) any payment institutions authorised in accordance with Article 11 of Directive (EU) 2015/2366 and providing payment services in relation to significant e-money tokens;
(g) any natural or legal persons in charge of distributing significant e-money tokens on behalf of the issuer of significant e-money tokens;
2.
3.
4.
5.
(h)
(i)
(j)
any crypto-asset service provider providing the crypto-asset service referred to in Article 3(1) point (10) in relation with significant asset-referenced tokens or significant e-money tokens;
any trading platform for crypto-assets that has admitted a significant asset-referenced token or a significant e-money token to trading;
the management body of the persons referred to in points (a) to (i). Any simple request for information as referred to in paragraph 1 shall:
(a) refer to this Article as the legal basis of that request;
(b) state the purpose of the request;
(c) specify the information required;
(d) include a time limit within which the information is to be provided;
(e)
indicate the amount of the fine to be issued in accordance with Article 113 where the information provided is incorrect or misleading.
When requiring to supply information under paragraph 1 by decision, the EBA shall:
(a) refer to this Article as the legal basis of that request;
(b) state the purpose of the request;
(c) specify the information required;
(d) set a time limit within which the information is to be provided;
(e) indicate the periodic penalty payments provided for in Article 114 where the production of information is required.
(f) indicate the fine provided for in Article 113, where the answers to questions asked are incorrect or misleading;
(g) indicate the right to appeal the decision before the EBA’s Board of Appeal and to have the decision reviewed by the Court of Justice of the European Union (‘Court of Justice’) in accordance with Articles 60 and 61 of Regulation (EU) No 1093/2010.
The persons referred to in paragraph 1 or their representatives and, in the case of legal persons or associations having no legal personality, the persons authorised to represent them by law or by their constitution shall supply the information requested. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading.
The EBA shall without delay send a copy of the simple request or of its decision to the competent authority of the Member State where the persons referred to in paragraph 1 concerned by the request for information are domiciled or established.
Article 105
General investigative powers
1. In order to carry out its duties under Article 98 of this Regulation, EBA may conduct
investigations on issuers of significant asset-referenced tokens and issuers of significant e-money tokens. To that end, the officials and other persons authorised by the EBA shall be empowered to:
(a) (b) (c)
(d) (e)
examine any records, data, procedures and any other material relevant to the execution of its tasks irrespective of the medium on which they are stored;
take or obtain certified copies of or extracts from such records, data, procedures and other material;
summon and ask any issuer of significant asset-referenced tokens or issuer of significant of e-money tokens, or their management body or staff for oral or written explanations on facts or documents relating to the subject matter and purpose of the inspection and to record the answers;
interview any other natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation;
request records of telephone and data traffic.
The college for issuers of significant asset-referenced tokens as referred to in Article 99 or the college for issuers of significant e-money tokens as referred to in Article 101 shall be informed without undue delay of any findings that may be relevant for the execution of its tasks.
2. The officials and other persons authorised by the EBA for the purposes of the investigations referred to in paragraph 1 shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the investigation. That authorisation shall also indicate the periodic penalty payments provided for in Article 114 where the production of the required records, data, procedures or any other material, or the answers to questions asked to issuers of significant asset-referenced tokens or issuers of significant e-money tokens are not provided or are incomplete, and the fines provided for in Article 113, where the answers to questions asked to issuers of significant asset-referenced tokens or issuers of significant e-money tokens are incorrect or misleading.
3. The issuers of significant asset-referenced tokens and issuers of significant e-money tokens are required to submit to investigations launched on the basis of a decision of the EBA. The decision shall specify the subject matter and purpose of the investigation, the periodic penalty payments provided for in Article 114, the legal remedies available under Regulation (EU) No 1093/2010 and the right to have the decision reviewed by the Court of Justice.
4. In due time before an investigation referred to in paragraph 1, the EBA shall inform the competent authority of the Member State where the investigation is to be carried out of the investigation and of the identity of the authorised persons. Officials of the competent authority concerned shall, upon the request of the EBA, assist those authorised persons in carrying out their duties. Officials of the competent authority concerned may also attend the investigations upon request.
5. If a request for records of telephone or data traffic referred to in point (e) of paragraph 1 requires authorisation from a judicial authority according to applicable national law, such authorisation shall be applied for. Such authorisation may also be applied for as a precautionary measure.
6. Where a national judicial authority receives an application for the authorisation of a request for records of telephone or data traffic referred to in point (e) of paragraph 1, that authority shall verify the following:
(a) the decision adopted by the EBA referred to in paragraph 3 is authentic;
(b) any measures to be taken are proportionate and not arbitrary or excessive.
7. For the purposes of point (b) paragraph 6, the national judicial authority may ask the
EBA for detailed explanations, in particular relating to the grounds the EBA has for suspecting that an infringement of this Regulation has taken place and the seriousness of the suspected infringement and the nature of the involvement of the person subject to the coercive measures. However, the national judicial authority shall not review the necessity for the investigation or demand that it be provided with the information on the EBA’s file. The lawfulness of the EBA’s decision shall be subject to review only by the Court of Justice following the procedure set out in Regulation (EU) No 1093/2010.
Article 106
On-site inspections
1. In order to carry out its duties under Article 98 of this Regulation, the EBA may conduct all necessary on-site inspections at any business premises of the issuers of significant asset-referenced tokens and issuers of significant e-money tokens.
The college for issuers of significant asset-referenced tokens as referred to in Article 99 or the college for issuers of significant e-money tokens as referred to in Article 101 shall be informed without undue delay of any findings that may be relevant for the execution of its tasks.
2. The officials and other persons authorised by the EBA to conduct an on-site inspection may enter any business premises of the persons subject to an investigation decision adopted by the EBA and shall have all the powers stipulated in Article 105(1). They shall also have the power to seal any business premises and books or records for the period of, and to the extent necessary for, the inspection.
3. In due time before the inspection, the EBA shall give notice of the inspection to the competent authority of the Member State where the inspection is to be conducted. Where the proper conduct and efficiency of the inspection so require, the EBA, after informing the relevant competent authority, may carry out the on-site inspection without prior notice to the issuer of significant asset-referenced tokens or the issuer of significant e-money tokens.
4. The officials and other persons authorised by the EBA to conduct an on-site inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the periodic penalty payments provided for in Article 114 where the persons concerned do not submit to the inspection.
5. The issuer of significant asset-referenced tokens or the issuer of significant e-money tokens shall submit to on-site inspections ordered by decision of the EBA. The decision shall specify the subject matter and purpose of the inspection, appoint the date on which it is to begin and indicate the periodic penalty payments provided for in Article 114, the legal remedies available under Regulation (EU) No 1093/2010 as well as the right to have the decision reviewed by the Court of Justice.
6. Officials of, as well as those authorised or appointed by, the competent authority of the Member State where the inspection is to be conducted shall, at the request of the EBA, actively assist the officials and other persons authorised by the EBA. Officials of the competent authority of the Member State concerned may also attend the onsite inspections.
7. The EBA may also require competent authorities to carry out specific investigatory tasks and on-site inspections as provided for in this Article and in Article 105(1) on its behalf.
8. Where the officials and other accompanying persons authorised by the EBA find that a person opposes an inspection ordered pursuant to this Article, the competent authority of the Member State concerned shall afford them the necessary assistance, requesting, where appropriate, the assistance of the police or of an equivalent enforcement authority, so as to enable them to conduct their on-site inspection.
9. If the on-site inspection provided for in paragraph 1 or the assistance provided for in paragraph 7 requires authorisation by a judicial authority according to national law, such authorisation shall be applied for. Such authorisation may also be applied for as a precautionary measure.
10. Where a national judicial authority receives an application for the authorisation of an on-site inspection provided for in paragraph 1 or the assistance provided for in paragraph 7, that authority shall verify the following:
(a) the decision adopted by the EBA referred to in paragraph 4 is authentic;
(b) any measures to be taken are proportionate and not arbitrary or excessive.
11. For the purposes of paragraph 10, point (b), the national judicial authority may ask the EBA for detailed explanations, in particular relating to the grounds the EBA has for suspecting that an infringement of this Regulation has taken place and the seriousness of the suspected infringement and the nature of the involvement of the person subject to the coercive measures. However, the national judicial authority shall not review the necessity for the investigation or demand that it be provided with the information on the EBA’s file. The lawfulness of the EBA’s decision shall be subject to review only by the Court of Justice following the procedure set out in Regulation (EU) No 1093/2010.
Article 107
Exchange of information
In order to carry out its duties under Article 98 and without prejudice to Article 84, the EBA and the competent authorities shall provide each other with the information required for the purposes of carrying out their duties under this Regulation without undue delay. For that purpose, competent authorities shall exchange with the EBA any information related to:
(a) an issuer of significant asset-referenced tokens or a person controlling or being directly or indirectly controlled by an issuer of significant asset-referenced tokens;
(b) any third parties as referred to in Article 30(5), point (h) with which the issuers of significant asset-referenced tokens has a contractual arrangement;
(c) any crypto-assets service provider as referred to in Article 35(4) which provide liquidity for significant asset-referenced tokens;
(d) credit institutions or crypto-asset service providers ensuring the custody of the reserve assets in accordance with Article 33;
(e) an issuer of significant e-money tokens or a person controlling or being directly or indirectly controlled by an issuer of significant e-money tokens;
(f) any payment institutions authorised in accordance with Article 11 of Directive (EU) 2015/2366 and providing payment services in relation to significant e-money tokens;
(g) any natural or legal persons in charge of distributing significant e-money tokens on
behalf of the issuer of significant e-money tokens;
(h) any crypto-asset service provider providing the crypto-asset service referred to in
Article 3(1), point (10), in relation with significant asset-referenced tokens or significant e-money tokens;
(i) any trading platform for crypto-assets that has admitted a significant asset-referenced
token or a significant e-money token to trading;
(j) the management body of the persons referred to in point (a) to (i).
Article 108
Administrative agreements on exchange of information between the EBA and third
countries
1. In order to carry out its duties under Article 98, the EBA may conclude administrative agreements on exchange of information with the supervisory authorities of third countries only if the information disclosed is subject to guarantees of professional secrecy which are at least equivalent to those set out in Article 111.
2. Exchange of information referred to in paragraph 1 shall be intended for the performance of the tasks of the EBA or those supervisory authorities.
3. With regard to transfer of personal data to a third country, the EBA shall apply Regulation (EU) No 2018/1725.
Article 109
Disclosure of information from third countries
The EBA may disclose the information received from supervisory authorities of third countries only where the EBA or a competent authority has obtained the express agreement of the supervisory authority that has transmitted the information and, where applicable, the information is disclosed only for the purposes for which that supervisory authority gave its agreement or where such disclosure is necessary for legal proceedings.
Article 110
Cooperation with other authorities
Where an issuer of significant asset-referenced tokens or an issuer of significant e-money tokens engages in activities other than those covered by this Regulation, the EBA shall cooperate with the authorities responsible for the supervision or oversight of such other activities as provided for in the relevant Union or national law, including tax authorities.
Article 111
Professional secrecy
The obligation of professional secrecy shall apply to the EBA and all persons who work or who have worked for the EBA or for any other person to whom the EBA has delegated tasks, including auditors and experts contracted by the EBA.
1.
2.
Article 112
Supervisory measures by the EBA
Where the EBA finds that an issuer of a significant asset-referenced tokens has committed one of the infringements listed in Annex V, it may take one or more of the following actions:
(a) (b) (c) (d)
(e) (f)
(g) (h)
(i)
(j)
adopt a decision requiring the issuer of significant asset-referenced tokens to bring the infringement to an end;
adopt a decision imposing fines Articles 113 and 114;
or periodic penalty payments pursuant to
adopt a decision requiring the issuer of significant asset-referenced tokens supplementary information, where necessary for consumer protection;
adopt a decision requiring the issuer of significant asset-referenced tokens to suspend an offer to the public of crypto-assets for a maximum period of 10 consecutive working days on any single occasion where there are reasonable grounds for suspecting that this Regulation has been infringed;
adopt a decision prohibiting an offer to the public of significant asset-referenced tokens where they find that this Regulation has been infringed or where there are reasonable grounds for suspecting that it would be infringed;
adopt a decision requiring the relevant trading platform for crypto-assets that has admitted to trading significant asset-referenced tokens, for a maximum of 10 consecutive working days on any single occasion where there are reasonable grounds for believing that this Regulation has been infringed;
adopt a decision prohibiting trading of significant asset-referenced tokens, on a trading platform for crypto-assets where they find that this Regulation has been infringed;
adopt a decision requiring the issuer of significant asset-referenced tokens to disclose, all material information which may have an effect on the assessment of the significant asset-referenced tokens offered to the public or admitted to trading on a trading platform for crypto-assets in order to ensure consumer protection or the smooth operation of the market;
issue warnings on the fact that an issuer of significant asset-referenced tokens is failing to comply with its obligations;
withdraw the authorisation of the issuer of significant asset-referenced tokens.
Where the EBA finds that an issuer of a significant e-money tokens has committed one of the infringements listed in Annex VI, it may take one or more of the following actions:
(a) adopt a decision requiring the issuer of significant e-money tokens to bring the infringement to an end;
(b) adopt a decision imposing fines or periodic penalty payments pursuant to Articles 113 and 114;
(c) issue warnings on the fact that an issuer of significant e-money tokens is failing to comply with its obligations.
3.
4.
5.
6.
When taking the actions referred to in paragraphs 1 and 2, the EBA shall take into account the nature and seriousness of the infringement, having regard to the following criteria:
(a) (b)
(c)
(d) (e)
(f)
(g) (h)
(i)
(j) (k)
the duration and frequency of the infringement;
whether financial crime has been occasioned, facilitated attributable to the infringement;
otherwise
whether the infringement has revealed serious or systemic weaknesses in the issuer of significant asset-referenced tokens' or in the issuer of significant e-money tokens’ procedures, policies and risk management measures;
whether the infringement has been committed intentionally or negligently;
the degree of responsibility of the issuer of significant asset-referenced tokens or the issuer of significant e-money tokens responsible for the infringement;
the financial strength of the issuer of significant asset-referenced tokens, or of the issuer of significant e-money tokens, responsible for the infringement, as indicated by the total turnover of the responsible legal person or the annual income and net assets of the responsible natural person;
the impact of the infringement on the interests of holders of significant asset-referenced tokens or significant e-money tokens;
the importance of the profits gained, losses avoided by the issuer of significant asset-referenced tokens or significant e-money tokens responsible for the infringement or the losses for third parties derived from the infringement, insofar as they can be determined;
the level of cooperation of the issuer of significant asset-referenced tokens, or for the issuer of significant e-money tokens responsible for the infringement with the EBA, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person;
previous infringements by the issuer of significant asset-referenced tokens or by the issuer of e-money tokens responsible for the infringement;
measures taken after the infringement by the issuer of significant asset-referenced tokens or by the issuer of significant e-money tokens to prevent the repetition of such an infringement.
Before taking the actions referred in points (d) to (g) and point (j) of paragraph 1, the EBA shall inform ESMA and, where the significant asset-referenced tokens refers Union currencies, the central banks of issues of those currencies.
Before taking the actions referred in points (a) to (c) of paragraph 2, the EBA shall inform the competent authority of the issuer of significant e-money tokens and the central bank of issue of the currency that the significant e-money token is referencing.
The EBA shall notify any action taken pursuant to paragraph 1 and 2 to the issuer of significant asset-referenced tokens or the issuer of significant e-money tokens responsible for the infringement without undue delay and shall communicate that action to the competent authorities of the Member States concerned and the Commission. The EBA shall publicly disclose any such decision on its website within 10 working days from the date when that decision was adopted.
or
7.
The (a)
(b)
disclosure to the public
referred to in paragraph 6 shall include the following:
a statement affirming the right of the person responsible for the infringement to appeal the decision before the Court of Justice;
where relevant, a statement affirming that an appeal has been lodged and specifying that such an appeal does not have suspensive effect;
(c) a statement asserting that it is possible for EBA’s Board of Appeal to suspend the application of the contested decision in accordance with Article 60(3) of Regulation (EU) No 1093/2010.
1.
2.
Article 113
Fines
The EBA shall adopt a decision imposing a fine in accordance with paragraph 3 or 4, where in accordance with Article 116(8), it finds that:
(a) (b)
an issuer of significant asset-referenced tokens has, intentionally negligently, committed one of the infringements listed in Annex V;
an
issuer of significant e-money tokens has, intentionally committed one of the infringements listed in Annex VI.
or
negligently,
An infringement shall be considered to have been committed intentionally if the EBA finds objective factors which demonstrate that such an issuer or its management body acted deliberately to commit the infringement.
When taking the actions referred to in paragraph 1, the EBA shall take into account the nature and seriousness of the infringement, having regard to the following criteria:
(a) (b)
(c)
(d) (e)
(f)
(g) (h)
(i)
the duration and frequency of the infringement;
whether financial crime has been occasioned, facilitated attributable to the infringement;
otherwise
whether the infringement has revealed serious or systemic weaknesses in the issuer of significant asset-referenced tokens' or in the issuer of significant e-money tokens’ procedures, policies and risk management measures;
whether the infringement has been committed intentionally or negligently;
the degree of responsibility of the issuer of significant asset-referenced tokens or the issuer of significant e-money tokens responsible for the infringement;
the financial strength of the issuer of significant asset-referenced tokens, or of the issuer of significant e-money tokens, responsible for the infringement, as indicated by the total turnover of the responsible legal person or the annual income and net assets of the responsible natural person;
the impact of the infringement on the interests of holders of significant asset-referenced tokens or significant e-money tokens;
the importance of the profits gained, losses avoided by the issuer of significant asset-referenced tokens responsible for the infringement or the losses for third parties derived from the infringement, insofar as they can be determined;
the level of cooperation of the issuer of significant asset-referenced tokens, or for the issuer of significant e-money tokens, for the infringement with the
or
or
3.
4.
(j) (k)
For
EBA, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person;
previous infringements by the issuer of significant asset-referenced tokens or by the issuer of significant e-money tokens responsible for the infringement;
measures taken after the infringement by the issuer of significant asset-referenced tokens or by the issuer of significant e-money tokens to prevent the repetition of such an infringement.
issuers of significant asset-referenced tokens, the maximum amount of the fine referred to in paragraph 1 shall up to 15% of the annual turnover as defined under relevant Union law, in the preceding business year, or twice the amount or profits gained or losses avoided because of the infringement where those can be determined.
For issuers of significant e-money tokens, the maximum amount of the fine referred to in paragraph 1 shall up to 5% of the annual turnover, as defined under relevant Union law, in the preceding business year, or twice the amount or profits gained or losses avoided because of the infringement where those can be determined.
1.
2. 3.
4.
Article 114
Periodic penalty payments
The EBA shall, by decision, impose periodic penalty payments in order to compel:
(a) (b)
a person to put an end to an infringement in accordance with a decision taken pursuant to Article 112;
a person referred to in Article 104(1):
i) to supply complete information which has been requested by a decision
pursuant to Article 104;
ii) to submit to an investigation and in particular to produce complete
records, data, procedures or any other material required and to complete and correct other information provided in an investigation launched by a decision pursuant to Article 105;
iii)
to submit to an on-site inspection ordered by a decision taken pursuant to Article 106.
The
periodic
A periodic penalty payment shall be effective and proportionate. penalty payment shall be imposed for each day of delay.
Notwithstanding paragraph 2, the amount of the periodic penalty payments shall be 3 % of the average daily turnover in the preceding business year, or, in the case of natural persons, 2 % of the average daily income in the preceding calendar year. It shall be calculated from the date stipulated in the decision imposing the periodic penalty payment.
A periodic penalty payment shall be imposed for a maximum period of six months following the notification of the EBA’s decision. Following the end of the period, the EBA shall review the measure.
Article 115
Disclosure, nature, enforcement and allocation of fines and periodic penalty payments
1. The EBA shall disclose to the public every fine and periodic penalty payment that has been imposed pursuant to Articles 113 and 114 unless such disclosure to the public would seriously jeopardise the financial stability or cause disproportionate damage to the parties involved. Such disclosure shall not contain personal data within the meaning of Regulation (EU) 2016/679172.
2. Fines and periodic penalty payments imposed pursuant to Articles 113 and 114 shall be of an administrative nature.
3. Where the EBA decides to impose no fines or penalty payments, it shall inform the European Parliament, the Council, the Commission, and the competent authorities of the Member State concerned accordingly and shall set out the reasons for its decision.
4. Fines and periodic penalty payments imposed pursuant to Articles 113 and 114 shall be enforceable.
5. Enforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it is carried out.
6. The amounts of the fines and periodic penalty payments shall be allocated to the general budget of the European Union.
Article 116
Procedural rules for taking supervisory measures and imposing fines
1. Where, in carrying out its duties under Articles 98, the EBA finds that there are serious indications of the possible existence of facts liable to constitute one or more of the infringements listed in Annexes V or VI, the EBA shall appoint an independent investigation officer within the EBA to investigate the matter. The appointed officer shall not be involved or have been directly or indirectly involved in the supervision of the issuers of significant asset-referenced tokens or issuers of significant e-money tokens and shall perform its functions independently from the EBA.
2. The investigation officer referred to in paragraph 1 shall investigate the alleged infringements, taking into account any comments submitted by the persons who are subject to the investigations, and shall submit a complete file with his findings to EBA.
3. In order to carry out its tasks, the investigation officer may exercise the power to request information in accordance with Article 104 and to conduct investigations and on-site inspections in accordance with Articles 105 and 106. When using those powers, the investigation officer shall comply with Article 103.
4. Where carrying out his tasks, the investigation officer shall have access to all documents and information gathered by the EBA in its supervisory activities.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
2
5. Upon completion of his or her investigation and before submitting the file with his findings to the EBA, the investigation officer shall give the persons subject to the investigations the opportunity to be heard on the matters being investigated. The investigation officer shall base his or her findings only on facts on which the persons concerned have had the opportunity to comment.
6. The rights of the defence of the persons concerned shall be fully respected during investigations under this Article.
7. When submitting the file with his findings to the EBA, the investigation officer shall notify the persons who are subject to the investigations. The persons subject to the investigations shall be entitled to have access to the file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information affecting third parties or the EBA’s internal preparatory documents.
8. On the basis of the file containing the investigation officer’s findings and, when requested by the persons subject to the investigations, after having heard those persons in accordance with Article 117, the EBA shall decide if one or more of the infringements of provisions listed in Annex V or VI have been committed by the issuer of significant asset-referenced tokens or the issuer of significant e-money tokens subject to the investigations and, in such a case, shall take a supervisory measure in accordance with Article 112 and/or impose a fine in accordance with Article 113.
9. The investigation officer shall not participate in EBA’s deliberations or in any other way intervene in EBA’s decision-making process.
10. The Commission shall adopt delegated acts in accordance with Article 121 by [please insert date 12 months after entry into force] specifying further the rules of procedure for the exercise of the power to impose fines or periodic penalty payments, including provisions on the rights of the defence, temporal provisions, and the collection of fines or periodic penalty payments, and the limitation periods for the imposition and enforcement of fines and periodic penalty payments.
11. The EBA shall refer matters to the appropriate national authorities for investigation and possible criminal prosecution where, in carrying out its duties under this Regulation, it finds that there are serious indications of the possible existence of facts liable to constitute criminal offences. In addition, the EBA shall refrain from imposing fines or periodic penalty payments where a prior acquittal or conviction arising from identical fact or facts which are substantially the same has already acquired the force of res judicata as the result of criminal proceedings under national law.
Article 117
Hearing of persons concerned
1. Before taking any decision pursuant to Articles 112, 113 and 114, the EBA shall give the persons subject to the proceedings the opportunity to be heard on its findings. The EBA shall base its decisions only on findings on which the persons subject to the proceedings have had an opportunity to comment.
2. Paragraph 1 shall not apply if urgent action is needed in order to prevent significant and imminent damage to the financial stability or consumer protection. In such a case
the EBA may adopt an interim decision and shall give the persons concerned the opportunity to be heard as soon as possible after taking its decision.
3. The rights of the defence of the persons subject to investigations shall be fully
respected in the proceedings. They shall be entitled to have access to the EBA’s file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information or the EBA’s internal preparatory documents.
Article 118
Review by the Court of Justice
The Court of Justice shall have unlimited jurisdiction to review decisions whereby the EBA has imposed a fine or a periodic penalty payment or imposed any other sanction or administrative measure in accordance with this Regulation. It may annul, reduce or increase the fine or periodic penalty payment imposed.
Article 119
Supervisory fees
1. The EBA shall charge fees to the issuers of significant asset-referenced tokens and the issuers of significant e-money tokens in accordance with this Regulation and in accordance with the delegated acts adopted pursuant to paragraph 3. Those fees shall cover the EBA’s expenditure relating to the supervision of issuers of significant asset-referenced tokens and the supervision of issuers of significant e-money token issuers in accordance with Article 98, as well as the reimbursement of costs that the competent authorities may incur carrying out work pursuant to this Regulation, in particular as a result of any delegation of tasks in accordance with Article 120.
2. The amount of the fee charged to an individual issuer of significant asset-referenced tokens shall be proportionate to the size of its reserve assets and shall cover all costs incurred by the EBA for the performance of its supervisory tasks in accordance with this Regulation.
The amount of the fee charged to an individual issuer of significant e-money tokens shall be proportionate to the size of the e-money issued in exchanged of funds and shall cover all costs incurred by the EBA for the performance of its supervisory tasks in accordance with this Regulation.
3. The Commission shall adopt a delegated act in accordance with Article 121 by [please insert date 12 months after entry into force] to specify the type of fees, the matters for which fees are due, the amount of the fees and the manner in which they are to be paid and the methodology to calculate the maximum amount per entity under paragraph 2 that can be charged by the EBA.
Article 120
Delegation of tasks by the EBA to competent authorities
1. Where necessary for the proper performance of a supervisory task for issuers of
significant asset-referenced tokens or significant e-money tokens, the EBA may delegate specific supervisory tasks to the competent authority of a Member State. Such specific supervisory tasks may, in particular, include the power to carry out requests for information in accordance with Article 104 and to conduct investigations and on-site inspections in accordance with Article 105 and Article 106.
2. Prior to delegation of a task, the EBA shall consult the relevant competent authority about:
(a) the scope of the task to be delegated;
(b) the timetable for the performance of the task; and
(c) the transmission of necessary information by and to the EBA.
3. In accordance with the regulation on fees adopted by the Commission pursuant to Article 119(3), the EBA shall reimburse a competent authority for costs incurred as a result of carrying out delegated tasks.
4. The EBA shall review the decision referred to in paragraph 1 at appropriate intervals. A delegation may be revoked at any time.
Title VIII: Delegated acts and
implementing acts
Article 121
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Articles 3(2), 39(6), 116(10) and 119(3) shall be conferred on the Commission for a period of 36 months from … [please insert date of entry into force of this Regulation].
3. The delegation of powers referred to in Articles 3(2), 39(6), 116(10) and 119(3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
6. A delegated act adopted pursuant to Articles 3(2), 39(6), 116(10) and 119(3) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.
Title IX Transitional
and final provisions
1.
2.
Article 122
Report
By … [36 months after the date of entry into force of this Regulation] after consulting the EBA and ESMA, the Commission shall present a report to the European Parliament and the Council on the application of this Regulation, where appropriate accompanied by a legislative proposal.
The report shall contain the following:
(a)
(b) (c)
(d)
(e)
(f)
(g)
(h)
(i)
the number of issuances of crypto-assets in the EU, the number of crypto-asset white papers registered with the competent authorities, the type of crypto-assets issued and their market capitalisation, the number of crypto-assets admitted to trading on a trading platform for crypto-assets;
an estimation of the number of EU residents using or investing in crypto-assets issued in the EU;
the number and value of fraud, hacks and thefts of crypto-assets reported in the EU, types of fraudulent behaviour, the number of complaints received by crypto-asset service providers and issuers of asset-referenced tokens, the number of complaints received by competent authorities and the subjects of the complaints received;
the number of issuers of asset-referenced tokens authorised under this Regulation, and an analysis of the categories of assets included in the reserves, the size of the reserves and the volume of payments in asset-referenced tokens;
the number of issuers of significant asset-referenced tokens authorised under this Regulation, and an analysis of the categories of assets included in the reserves, the size of the reserves and the volume of payments in significant asset-referenced tokens;
the number of issuers of e-money tokens authorised under this Regulation and under Directive 2009/110/EC, and an analysis of the currencies backing the e-money tokens, the size of the reserves and the volume of payments in e-money tokens;
the number of issuers of significant e-money tokens authorised under this Regulation and under Directive 2009/110/EC, and an analysis of the currencies backing the significant e-money tokens, the size of the reserves and the volume of payments in significant e-money tokens;
an assessment of the functioning of the market for crypto-asset services in the Union, including of market development and trends, taking into account the experience of the supervisory authorities, the number of crypto-asset service providers authorised and their respective average market share;
an assessment of the level of consumer protection, including from the point of view of the operational resilience of issuers of crypto-assets and crypto-asset service providers, market integrity and financial stability provided by this
Regulation;
(j)
(k)
(l) (m)
(n) (o)
(p) (q)
(r) (s)
(t)
(u)
an assessment of whether the scope of crypto-asset services covered by this Regulation is appropriate and whether any adjustment to the definitions set out in this Regulation is needed;
an assessment of whether an equivalence regime should be established for third-country crypto-asset service providers, issuers of asset-referenced tokens or issuers of e-money tokens under this Regulation;
an assessment of whether the exemptions under Articles 4 and 15 are appropriate;
an assessment of the impact of this Regulation on the proper functioning of the internal market for crypto-assets, including any impact on the access to finance for small and medium-sized enterprises and on the development of new means of payment instruments;
a description of developments in business models and technologies in the crypto-asset market;
an appraisal of whether any changes are needed to the measures set out in this Regulation to ensure consumer protection, market integrity and financial stability;
the application of administrative penalties and other administrative measures;
an evaluation of the cooperation between the competent authorities, the EBA and ESMA, and an assessment of advantages and disadvantages of the competent authorities and the EBA being responsible for supervision under this
Regulation;
the costs of complying with this Regulation for issuers of crypto-assets, other than asset-referenced tokens and e-money tokens as a percentage of the amount raised through crypto-asset issuances;
the costs for crypto-asset service providers to comply with this Regulation as a percentage of their operational costs;
the costs for issuers of issuers of asset-referenced tokens and issuers of e-money tokens to comply with this Regulation as a percentage of their operational costs;
the number and amount of administrative fines and criminal penalties imposed for infringements of this Regulation by competent authorities and the EBA.
1.
2.
Article 123
measures
Transitional
Articles 4 to 14 shall not apply to crypto-assets, other than asset-referenced tokens and e-money tokens, which were offered to the public in the Union or admitted to trading on a trading platform for crypto-assets before [please insert date of entry into application].
By way of derogation from this Regulation, crypto-asset service providers which provided their services in accordance with applicable law before [please insert the date of entry into application], may continue to do so until [please insert the date 18 months after the date of application] or until they are granted an authorisation pursuant to Article 55, whichever is sooner.
3. By way of derogation from Articles 54 and 55, Member States may apply a simplified procedure for applications for an authorisation which are submitted between the [please insert the date of application of this Regulation] and [please insert the date 18 months after the date of application] by entities that, at the time of entry into force of this Regulation, were authorised under national law to provide crypto-asset services. The competent authorities shall ensure that the requirements laid down in Chapters 2 and 3 of Title IV are complied with before granting authorisation pursuant to such simplified procedures.
4. The EBA shall exercise its supervisory responsibilities pursuant to Article 98 from the date of the entry into application of the delegated acts referred to in Article 39(6).
Article 124
Amendment of Directive (EU) 2019/1937
In Part I.B of the Annex to Directive (EU) 2019/1937, the following point is added:
"(xxi) Regulation (EU) …./… of the European Parliament and of the Council of … on Markets in Crypto-Assets (EU) 2021/XXX, and amending Directive (EU) 2019/37 (OJ L …)73."
Article 125
Transposition of amendment of Directive (EU) 2019/1937
1. Member States shall adopt, publish and apply, by … [12 months after the date of entry into force of this Regulation], the laws, regulations and administrative provisions necessary to comply with Article 97. However, if that date precedes the date of transposition referred to in Article 26(1) of Directive (EU) 2019/1937, the application of such laws, regulations and administrative provisions shall be postponed until the date of transposition referred to in Article 26(1) of Directive (EU) 2019/1937.
2. Member States shall communicate to the Commission, the EBA and ESMA the text of the main provisions of national law which they adopt in the field covered by Article 97.
Article 126
Entry into force and application
1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
2. This Regulation shall apply from [please insert date 18 months after the date of entry into force].
3. However, the provisions laid down in Title III and Title IV shall apply from [please insert the date of the entry into force].
OJ: Please insert in the text the number, date and OJ reference of this Regulation.
73
4. This Regulation shall be binding in its entirety and directly applicable in all Member
States.