AUSTRIA Law and Practice Contributed by: Oliver Völkel, Jara Erhard and Bryan Hollmann, CERHA HEMPEL
For ARTs and EMTs, further specific requirements must also be taken into account (see 2.4 Token Issu- ance ). 4.2 White Labelling White-label solutions are allowed in principle, provided that the licensed CASP remains the actual provider of the regulated service and assumes full responsibility. White-label models therefore have to be set up as out- sourcing or distribution by the authorised CASP, not as the unlicensed firm providing the service in its own name. The CASP must remain the client’s contracting counterparty, keep control over onboarding, compli- ance and risk, and ensure supervisors can obtain all necessary information, including from third-party pro- viders. Technology, branding or front-end support can be out- sourced, but not the licence itself. If the external firm appears in substance to be the provider (own T&Cs, marketing for services, direct client relationship), it may be treated as a CASP that needs its own CASP authorisation. Where a white-label set-up ends up with an unlicensed firm effectively providing MiCA-in-scope services into Austria, the FMA can order the activity to stop, sus- pend or prohibit services and take further supervisory measures. In other words: outsourcing is permitted; “licence renting” that lets an unlicensed firm run the regulated business is not. DeFi is not prohibited in Austria. Neither Austrian law nor EU law contains a standalone regulatory framework for decentralised finance. MiCA expressly excludes crypto-asset services that are provided in a fully decentralised manner without any intermediary. The FMA applies a substance-over-form analysis on a case-by-case basis and will assess whether a proto- col is genuinely decentralised or merely nominally so. CeFi (Centralised-Finance) firms in Austria are per- mitted to engage with DeFi protocols and to conduct 5. Decentralised Finance 5.1 Ability to Use DeFi
other currently unregulated activities such as staking. However, a regulated entity does not shed its regula- tory obligations simply because the underlying tech- nology is decentralised. Licensed CASPs and finan- cial institutions must disclose all business activities to the FMA as part of the authorisation process, and the FMA actively monitors the full range of a licensed firm’s operations, whether regulated or not. Where a DeFi-related activity falls outside MiCA’s scope but involves financial instruments or triggers other regu- latory touchpoints, it may nevertheless be subject to MiFID II, AML obligations under the FM-GwG, or the operational resilience requirements of DORA. 5.2 DeFi Structures From a purely technical standpoint, a decentralised autonomous organisation (DAO) can be set up at any time by deploying smart-contract code and govern- ance rules on a blockchain. Austrian law, however, does not recognise a dedicated corporate form for DAOs, nor does it confer legal personality on them. Where multiple persons jointly operate a DAO with- out adopting a formal legal structure, the prevailing view in Austrian scholarship holds that a Gesellschaft bürgerlichen Rechts (GesBR) arises by operation of law – exposing all participants to joint and several unlimited personal liability. To mitigate this risk, prac- titioners typically wrap the DAO in a conventional legal entity – most commonly a limited liability company (GmbH), an association (Verein) or, where the jurisdic- tion expressly accommodates DAO-like structures, a foreign-law entity – while using the DAO solely as the internal governance and decision-making layer. The applicable substance and capital requirements are then determined by the chosen wrapper. A notable Austrian example is onchainaustria , a non-profit asso- ciation ( gemeinnütziger Verein ) that operates its gov- ernance entirely through a DAO: member decisions, general meetings, board elections, bookkeeping and payment flows are all executed on-chain via smart contracts and tokens, while the Verein itself furnishes the legally recognised personality needed to act in the external legal sphere. 5.3 Liability To date, there are no publicly reported Austrian court decisions that address liability specifically for losses arising from DeFi activities, such as smart-contract
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