AUSTRIA Law and Practice Contributed by: Oliver Völkel, Jara Erhard and Bryan Hollmann, CERHA HEMPEL
tory since 2009. Austria applies IOSCO-derived secu- rities standards primarily through ESMA guidelines and MiFID II/MiFIR, using EU/ESMA instruments as the main transmission belt for IOSCO standards rather than developing a separate Austrian securities regime for crypto-assets. 2.2 Crypto-Asset Regulatory Frameworks Classification of Crypto-Assets and Applicable Regulatory Frameworks In Austria, the regulatory classification of a token should begin by determining whether the token quali- fies as a crypto-asset within the meaning of MiCA. MiCA defines crypto-asset as a digital representation of a value or of a right that is able to be transferred and stored electronically using distributed ledger technol- ogy or similar technology. If the token does not meet this definition, MiCA does not apply. If the token does meet the definition, the next step is to assess whether it is nevertheless excluded from MiCA under Article 2 (4) of MiCA. Article 2 (4) of MiCA provides that MiCA does not apply to crypto-assets that qualify as certain existing regulated products under EU financial services law. These include, in particular, financial instruments, deposits, structured deposits, funds other than e-money tokens, securitisation positions, insurance or reinsurance products, and certain pension products. Accordingly, after determining that a token is a crypto- asset, the most important practical question in Austria is often whether it also qualifies as a financial instru- ment within the meaning of MiFID II, as implemented in Austria primarily through the Austrian Securities Supervision Act 2018 ( Wertpapieraufsichtsgesetz , WAG 2018). Where a token qualifies as a financial instrument – for example, a security token structured as a transferable security or a tokenised unit in a col- lective investment undertaking – it is excluded from MiCA and instead falls within the relevant MiFID II/ WAG 2018 perimeter. Depending on its structure and distribution, the Prospectus Regulation, market-abuse rules, settlement or trading rules, and Austrian or EU fund legislation, including the Austrian Alternative Investment Fund Managers Act ( Alternative Invest- mentfonds Manager - Gesetz , AIFMG) or the Austrian
Investment Fund Act 2011 ( Investmentfondsgesetz 2011 , InvFG 2011), may also apply. Only where the token qualifies as a crypto-asset and is not excluded under Article 2 (4) MiCA does the MiCA product-classification analysis apply. Within the MiCA perimeter, the principal categories are: • asset-referenced tokens (ARTs), which purport to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; • e-money tokens (EMTs), which purport to main- tain a stable value by referencing the value of one official currency; and • crypto-assets other than ARTs or EMTs, a residual category that includes many utility-token models. Regulated Activities in Relation to Crypto-Assets The provision of crypto-asset services under MiCA requires authorisation by the FMA. The ten regulated services under Article 3 (1), (16) MiCA are: • custody and administration of crypto-assets on behalf of clients; • operation of a trading platform; • exchange of crypto-assets for funds; • exchange of crypto-assets for other crypto-assets; • execution of orders on behalf of clients; • placing of crypto-assets; • reception and transmission of orders for crypto- assets on behalf of clients; • providing advice on crypto-assets; • providing portfolio management on crypto-assets; and • providing transfer services for crypto-assets on behalf of clients. Prohibited activities There is no general prohibition of crypto-asset prod- ucts or services in Austria. However, providing reg- ulated crypto-asset services without the required authorisation, as well as conducting public offerings that do not comply with MiCA requirements – par- ticularly with respect to white paper disclosure and conduct of business rules – is prohibited and sub- ject to sanctions. Market abuse in relation to crypto- assets, including insider dealing, unlawful disclosure
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