AUSTRIA Law and Practice Contributed by: Oliver Völkel, Jara Erhard and Bryan Hollmann, CERHA HEMPEL
the application of the rules more uncertain in prac- tice. For many CASPs – particularly small and mid-sized firms – the practical impact of the MiCA market abuse regime lies less in the abstract legal prohibitions and more in the operational requirements needed to comply. MiCA and its implementing measures, as interpreted and further detailed by ESMA, expect a relatively high degree of automation and systematic surveillance, which often results in a significant finan- cial and organisational burden for smaller CASPs. 2.6 Non-Compliance In Austria, crypto‑asset regulation is taken seriously, and the Austrian MiCA Implementation Act (MiCA- VVG) expressly designates the FMA as the competent authority for the active enforcement under the MiCA framework. Consequences When firms do not comply with MiCA requirements, the FMA has several tools at its disposal. These range from administrative fines, including fines calculated by reference to gains made or losses avoided, to far- reaching interventions in the business itself, including bans on individuals holding management functions and, ultimately, the withdrawal of a firm’s authorisa- tion. In serious cases, the FMA can restrict or even seize parts of a firm’s business: for example, by pro- hibiting certain services or effectively shutting down non‑compliant activities. In addition, the FMA relies on “naming and shaming”: decisions and measures are often published, which can damage the reputation of a firm far beyond the financial sanction. From a practical perspective, market participants in Austria should assume that MiCA rules will be enforced at least as strictly as existing rules in traditional finan- cial services. The message is that crypto‑asset ser- vices are now part of a fully regulated financial market, not an experimental side‑segment. Cross‑Border Breaches Crypto-asset services are often offered on a cross- border basis within the EU. In such cases, the FMA co- ordinates with other European supervisory authorities in order to avoid duplication of work and overlaps in
the exercise of supervisory and investigative powers, and in the imposition of administrative sanctions or other administrative measures in cross-border cases. Where an Austrian-licensed firm serves clients in other member states, co-operation and information exchange between authorities is the standard; the same applies where foreign firms target Austrian cli- ents without proper passporting or authorisation. In this case, the FMA may impose direct administrative measures – for example, by issuing public warnings or restricting certain activities towards Austrian clients – while at the same time engaging with the firm’s home supervisor. Expected Regulatory Attitude Over the Next 12 Months Over the next 12 months, the FMA’s stance is unlikely to soften; if anything, it is more likely to tighten as MiCA becomes embedded in supervisory practice and the authority seeks to ensure a level playing field. The first wave of authorisations and early enforcement cases will be used to send clear signals to the market about what is acceptable and what is not. 3. Licensing and Set-Up Requirements 3.1 Licensing Requirements Licence Requirement Under MiCA, any legal person or undertaking that professionally provides crypto‑asset services defined under Article 3 MiCA within the EU must obtain authorisation as a CASP (see 2.2 Crypto-Asset Regu- latory Frameworks , “Regulated Activities in Relation to Crypto-Assets”). Territorial Scope MiCA looks at where services are provided, not just where the firm is incorporated. This means that a non‑EU or non‑Austrian entity that targets EU‑based (or Austrian) clients with in‑scope crypto‑asset servic- es will likewise be expected to obtain a MiCA authori- sation (or operate via an authorised CASP) if it wants to serve those clients on a continuous, professional basis. At the same time, authorised CASPs must have a registered office and place of effective management
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