AUSTRIA Law and Practice Contributed by: Oliver Völkel and Philipp Ley, CERHA HEMPEL
• services related to crypto-assets – these involve the exchange, custody and transfer of crypto- assets regulated under MiCA in the EU; • issuance of e-money tokens (EMTs), including e-money payments and transfers; • tokenisation – this refers to linking real-world assets (eg, real estate, securities) into digital tokens on a blockchain, enabling fractional ownership and more efficient transferability; • open banking and payment services – this uses application programming interfaces (APIs) to enable third-party access to banking data and infrastructure, enhancing innovation in payments and account services; • digital lending and crowdfunding – this involves platforms (regulated under EU frameworks) that facilitate loans or capital raising, bypassing tradi - tional banks; and • DeFi – this involves blockchain-based financial services (eg, lending, trading) that operate without intermediaries (this area is still largely unregulated but is under increasing scrutiny because of risks and scale). 2.2 Regulatory Regime Austria’s regulatory regime for fintech industry par - ticipants is primarily regulated by MiFID II and MiCA. MiFID II governs traditional financial instruments and the entities offering them, including investment firms, trading venues and portfolio managers. Meanwhile, MiCA introduces a harmonised regime for crypto- asset services and issuers that fall outside the scope of existing EU financial regulation. The key legal implication is that only one of these frameworks can apply to a specific activity (either an asset qualifies as a financial instrument under MiFID II or as a crypto-asset under MiCA). This distinction is critical because it determines the applicable licensing regime, ongoing obligations and supervisory author - ity. Firms must carefully assess the legal classification of their product or service before going to market. In practice, this has made the analysis of whether an asset constitutes a financial instrument or a crypto- asset more important than ever. While a delineation between MiCA and MiFID II cre - ates clarity and ensures that only one of the regimes
applies, MiCA and the revised Payment Services Directive (PSD2) currently overlap. Due to the dual legal nature of electronic money tokens as crypto- assets and e-money, both regulatory acts apply in some cases. As a result, a large number of CASPs are currently applying for double authorisation. Even though, in principle, only one regulatory regime should apply, the conflict-of-law provisions are not yet suf - ficiently clear and the European Banking Authority (EBA) had to intervene with a no-action letter to relieve the affected companies. On this basis, the following regulatory regimes might be applicable. MiCA MiCA specifically regulates transparency and disclo - sure obligations for the offering and trading of crypto- assets, authorisation requirements and the ongoing supervision of CASPs. MiCA also places a strong emphasis on consumer protection rules for the issu - ing, trading and custody of crypto-assets, as well as rules for fighting market abuse at crypto-trading ven - ues. The European regulation is therefore based on three main pillars which are all derived from traditional financial regulation. The first pillar regulates the public offering of crypto- assets. Public offering means a communication to persons in any form, and by any means, presenting sufficient information on the terms of the offer and the crypto-assets to be offered so as to enable potential holders to decide whether to purchase those cryp - to-assets or not. A crypto-asset white paper must be drawn up, notified to the competent supervisory authority and published before the start of the public offer. It must be publicly available for as long as per - sons hold the crypto-asset, ie, potentially indefinitely. If an asset-referenced token (ART) is to be offered publicly, the white paper must also be approved by a supervisory authority. The second pillar regulates crypto-asset services. MiCA distinguishes between two groups of CASPs: • companies that acquire a licence under MiCA; and
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