AUSTRIA Law and Practice Contributed by: Oliver Völkel, Jara Erhard and Bryan Hollmann, CERHA HEMPEL
of inside information, and market manipulation, is also expressly covered by Austrian administrative penalty provisions (see also 1.1.3 Regulation of Blockchain Technology ). Distinction Between Retail and Professional Clients Austria does not operate a separate, Austria-only retail/professional crypto regime; the key distinctions and investment protections are primarily those found in the EU MiCA framework: under MiCA, a “retail holder” is a natural person acting outside their trade, business, craft or profession. The “professional” cat- egory is therefore best understood by contrast: per- sons (natural or legal) acting in the course of business/ investment activity are not “retail holders”, and MiCA’s most consumer-protective rules do not apply to them in the same way (eg, 14-calendar-day right of with- drawal and safeguarding obligation). Forthcoming Developments Further guidance and secondary measures are expected from the Austrian Financial Market Authority (FMA) to clarify supervisory expectations, in particular around dual licensing (see 6.2.2 Stablecoin Regula- tion ). In parallel, interaction with other EU initiatives – especially the implementation of updated AML and sanctions frameworks – will increasingly shape the operational and compliance requirements of entities active in the Austrian crypto-asset market. Beyond this, no major Austria-specific primary crypto-asset legislative package is currently planned. 2.3 Regulated Firms and Legal Wrappers If Austrian investors invest into a UCITS/OGAW or AIF with crypto-asset exposure, the product sold to the investor is typically the fund unit or share, rather than the underlying crypto-asset. The investor-facing regu- latory regime is therefore generally the UCITS/InvFG 2011 or AIFMG framework, including rules on:
The use of a fund wrapper does not, however, elimi- nate the regulatory consequences of the fund’s under- lying crypto exposure. The fund manager must assess whether the relevant exposure is permitted under the applicable UCITS or AIF rules and whether additional systems, risk-management, valuation, liquidity-man- agement, custody and disclosure arrangements are required. For regulated firms, crypto exposure may also raise prudential, organisational and conduct-of- business considerations. MiCA will not usually apply to the fund unit itself where that unit qualifies as a financial instrument or as a fund interest excluded under Article 2 (4) MiCA. However, MiCA may still be relevant at the level of the structure, manager, affiliate or service provider where there is a separate public offer or admission to trading of crypto- assets, or where regulated crypto-asset services are provided, such as custody, exchange, placing, advice, portfolio management or transfer services. In Austria, those MiCA obligations are supervised by the FMA. 2.4 Token Issuance In Austria there is a viable crypto-asset issuance industry that is essentially governed by the EEA-wide MiCA framework, which Austria follows. Offer to the Public MiCA sets out general requirements for the public offering of crypto-assets within the EU. A public offer is a communication to multiple people in any form, and by any means, presenting sufficient information on the terms of the offer and the crypto-assets to be offered so as to enable prospective buyers to decide whether to purchase those crypto-assets. Any com- munication, including publishing information on a website, or recommendations by influencers in video messages or at events, can constitute a public offer. In practice, the requirements depend on the type of crypto-assets, but where a launch qualifies as an “offer to the public” in the EU, one will generally need to: • act through a legal person; • prepare a MiCA-compliant crypto-asset white paper;
• authorisation; • governance; • eligible assets and investment restrictions; • risk management; • valuation; • custody/depositary arrangements; and • disclosure and distribution.
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