AUSTRIA Law and Practice Contributed by: Oliver Völkel, Jara Erhard and Bryan Hollmann, CERHA HEMPEL
• notify it to the competent authority (in Austria, the FMA); and • publish it on one’s website before launch, while also complying with MiCA conduct and marketing rules. MiCA also provides important exemptions (for exam- ple, offers to fewer than 150 persons per member state, offers not exceeding EUR1 million over 12 months, or offers made solely to qualified investors) and situations in which Title II does not apply at all, such as genuinely “free” distributions, certain mining/ validation rewards, specific utility tokens and limited- network use cases. Please note that these exemp- tions do not extend to ARTs and EMTs. Where a crypto-asset qualifies as an asset-referenced token (ART) or an e-money token (EMT), additional regulatory requirements may apply. These include, in particular, the following. • Asset-referenced tokens (ARTs) – The issuer must be established within the EU, and the crypto- asset white paper requires prior approval by the competent authority. Issuers are also required to a legal opinion on the classification of the token (for further requirements see 6.2.3 Backing Assets ). • E-money tokens (EMTs) – These are subject to stricter requirements and may only be issued by authorised credit institutions or e-money institu- tions (see 6.2.2 Stablecoin Regulation and 6.2.3 Backing Assets for further details and require - ments). Additional Austria-specific reporting For issuers of ARTs and EMTs with seat in Austria, Austria has implemented detailed reporting mechan- ics via the MiCAR ‑ Emittenten ‑ Meldeverordnung (MiCAR‑E‑MV) (an FMA regulation). The MiCAR‑E‑MV specifies, among other things, reporting cut‑off dates, intervals, structure, and content for reports to the Aus- trian National Bank (OeNB). 2.5 Market Abuse Within the EU, market abuse is governed by two par- allel regimes: one for traditional financial instruments (MAR) and one specifically for crypto-assets (MiCA).
Austria applies both frameworks and enforces them through the FMA as the competent authority. For traditional financial instruments, the Market Abuse Regulation (MAR) prohibits three core behaviours: • trading while in possession of inside information; • unlawfully disclosing inside information; and • manipulating the market (for example, by creating false or misleading signals, using wash trades or spreading misleading information). For crypto-assets that are not classified as “financial instruments”, MiCA now applies the same three basic prohibitions. In other words, the core logic is repli- cated: no insider dealing, no unlawful disclosure and no market manipulation. MiCA is further specified by Commission Delegated Regulation (EU) 2025/885, which sets out technical standards on how crypto- asset service providers (CASPs) and others must pre- vent, detect and report market abuse, including how to escalate and report suspicious patterns. Despite this parallel structure, there are some impor- tant differences. • No safe harbours – MAR contains explicit “legiti- mate behaviour” or “safe harbour” provisions (for example, for share buy-back programmes and stabilisation measures), provided strict conditions are met. MiCA does not include an equivalent catalogue of legitimate behaviour, which makes the crypto-asset insider regime more rigid and less cushioned by predefined exceptions. • Different real-world scenarios – The “typical cases” differ because the underlying assets and markets function differently. Under MAR, insider cases usually relate to M&A transactions, capital measures, financial results or major changes to business strategy, governance or financing. Under MiCA, insider cases are more likely to concern critical bugs or vulnerabilities in protocols or smart contracts, security incidents and hacks affecting wallets, bridges or platforms, planned hard forks or other protocol changes, or material changes to tokenomics. Given that these patterns are newer and less standardised, there are fewer settled case categories or precedents in crypto, which makes
45 CHAMBERS.COM
Powered by FlippingBook