AUSTRIA Law and Practice Contributed by: Oliver Völkel, Jara Erhard and Bryan Hollmann, CERHA HEMPEL
Marketing and Advertising of Crypto-Assets The core rules on marketing of crypto-assets are set out in Article 7 MiCA. In addition, Article 66 (2) MiCA requires that all information provided by CASPs to clients must be fair, clear and not misleading. These requirements build on long-standing capital markets standards already contained in MiFID II and the EU Prospectus Regulation (Regulation (EU) 2017/1129). In practice, it can therefore be expected that national regulators will apply their existing prospectus-related marketing doctrines by analogy to MiCA. For Austria, this means that the advertising principles set out in the FMA’s Prospectus Supervision Circular (available in German only) are likely to be applied in a similar way to crypto-asset marketing. The principles on marketing apply even where no crypto-asset white paper has to be published: for example, because an exemption under Article 4 MiCA is available, or where crypto-asset services within the meaning of Article 3 MiCA are offered. In other words, the general conduct-of-business and market- ing standards are applicable regardless of whether a white paper is required. Some of the key advertising principles under MiCA, which mirror those applicable to traditional securities, include the following: • marketing communications must be clearly recog- nisable as such (for example, by clear labelling as “marketing communication” or “advertisement”); • the content must be fair, clear and not mislead- ing, with a balanced presentation of both risks and benefits; • where a white paper is required, statements in marketing materials must not contradict the white paper or go beyond its content; • contact details (including at least a website and means of contact such as email or telephone) must be included; and • a prescribed statement must make clear that the marketing communication has not been reviewed or approved by any competent authority.
may provide services cross-border or through branch- es without needing separate local CASP licences, relying on the freedoms to provide services and of establishment within the EEA. In practice, this operates on a “one-stop shop” basis: one licence for all member states, with only a notifica- tion process required. To benefit from passporting, the Austrian CASP must submit a notification to the FMA indicating the host member states, the services to be provided and whether activities will be cross-border or via a branch. The FMA then forwards this infor- mation to the host authorities, after which the CASP may commence activities in those states, subject to any applicable local non-prudential requirements (eg, consumer protection and marketing rules). Issuers of crypto-assets within the scope of MiCA must publish a crypto-asset white paper as detailed under 2.4 Token Issuance . If there is a public offer of a crypto-asset, no marketing may be conducted prior to the publication of the white paper. In this case, marketing communication has to be consistent with the white paper and must include references to the white paper, prescribed disclaimers and contact information. For documentation purposes, marketing communications must also be posted on the offeror’s website. Exemptions and Reverse Solicitation EU law and MiCA recognise a reverse‑solicitation exemption for third‑country firms: where an EU/Aus- trian client approaches a non‑EU service provider entirely on their own exclusive initiative, the service provider may serve that client without obtaining a CASP authorisation for that specific relationship. However, this exemption is interpreted very narrowly by regulators and by the FMA: any active market- ing activities (websites tailored to Austrian investors, German‑language campaigns, Austrian influencers, geo‑targeted online ads, Austrian pricing,.at domains) are very likely to be treated as solicitation. 4. Cross-Border Services 4.1 Marketing Disclosure and Approval Requirements
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