AUSTRIA Trends and Developments Contributed by: Oliver Völkel, Jara Erhard and Bryan Hollmann, CERHA HEMPEL
ing to conduct business in the EU must set up shop in an EU member state and must obtain a licence. MiCA also prohibits market abuse in the crypto markets, including market manipulation and insider dealing. This chapter of the guide cannot provide an in-depth explanation of all of MiCA’s intricacies. To learn more, please consider visiting gomica.eu, which is a com- pendium on MiCA compliance. Further, readers may be interested in a copy of the MiCA commentary “Crypto-Assets” (ISBN 3406777864). Guidelines and RTS: providing clarity on MiCA provisions Note that while MiCA certainly is at the core of crypto- asset regulation in Austria and Europe, it is by far not the only legal source to consider. As mentioned above, there are a number of guidelines and delegated regu- lations including regulatory technical standards (RTS) and implementing technical standards (ITS) adopted by the European Banking Authority (EBA) and the European Securities and Markets Authority (ESMA). In fact, it is becoming increasingly difficult to follow the amount of delegated legal acts. In response, ESMA recently added MiCA to its Interactive Single Rule- book , which consolidates all related Level 2 and 3 measures. As this expanded coverage has only been introduced recently, the author of this chapter had already been tracking all consultation papers, final reports, delegated regulations, and guidelines long before ESMA’s publication. This independent index continues to be maintained, and readers may wish to bookmark gomica.eu/resources for an up-to-date overview of all relevant legislative materials. Austrian FMA as a MiCA Licensing Venue: EU’s Leading Regulator Why the FMA is a good choice Due to the strong regulatory oversight and security provided by the Austrian FMA, an increasing number of market participants are choosing Austria as a loca- tion in which to pursue a CASP licence under MiCA. There are a number of factors that play into this con- sideration. • English as default – Most importantly, the Austrian FMA accepts communication in English, not only in regular emails but also with respect to source
documents that need to be submitted by appli- cants in licensing proceedings. • Ample experience – The Austrian FMA has exten- sive experience with a huge number of business models in the crypto industry. For some back- ground on how this came about, see the excursus below. • Preliminary discussions – The Austrian FMA active- ly encourages all interested companies to contact it as early as possible to allow sufficient time for preparation and co-ordination. Those companies that are already making concrete preparations to apply for authorisation as CASPs in Austria are invited to inform the FMA of their interest in sched- uling an introductory meeting. Details of how to contact the FMA can be found in its roadmap for CASPs. • Central location – Austria’s central location in Europe is a plus. Additionally, it shares a border with Switzerland where many protocols set up Swiss foundations in the past. This proximity and the shared German language allow for an easy EU- market entry from Switzerland. Excursus: how Austria’s FMA became Central Europe’s “crypto regulator” It cannot be stressed enough that Austria’s financial markets regulator, the FMA, has an exceptionally strong understanding of blockchain/DLT and almost any business model in the crypto industry. This should not come as a surprise considering the dynamics that played out in the decade before the EU legislator stepped in by adopting MiCA, in particular relating to the differing legal views the Austrian FMA held as compared to German regulator BaFin. As early as 2013, BaFin decided to categorise Bit- coins as units of account within the meaning of the German Banking Act. It arrived at its conclusion before discourse on the legal quality of Bitcoin had even fully begun in Germany. The argumentation was correspondingly criticised as unsubstantiated and as based on incorrect assumptions. The dramatic con- sequences BaFin’s enforced view had for Germany’s emerging crypto industry were evident long before the shortcomings of BaFin’s legal position became clear as understanding of this new phenomenon developed.
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