AUSTRIA Law and Practice Contributed by: Oliver Völkel and Philipp Ley, CERHA HEMPEL
• companies, such as credit institutions, that already hold a licence to provide traditional financial ser - vices. CASPs must have their registered office in an EU member state where they conduct at least part of their service business. They must also have their place of effective management in the EU and at least one of the managers must be an EU resident. All CASPs are subject to general obligations, ie, to act honestly, fairly and professionally in the best interest of the customer. In addition, specific special provisions apply to CASPs depending on the specific crypto-asset service that is being provided. For example, in the case of custody of crypto-assets, CASPs must maintain a register for their clients, in which ownership positions and rights of clients are recorded. The third pillar is the market abuse regime specific to crypto-assets and CASPs. These rules cover: the requirement to publicly disclose insider information; the prohibition of insider trading; the prohibition of unlawful disclosure of insider information; and the prohibition of market manipulation and detection of market abuse. PSD2 As EMTs qualify as electronic money and therefore as “funds” within the meaning of PSD2, certain services related to them now constitute payment services. Ser - vice providers will generally require dual authorisation under both MiCA and PSD2 for the following activities in relation to EMTs: • for transfer services offered as a service for clients • for providing custodial wallets, provided the wallets permit the sending and receiving of EMT transfers to and from third parties, as in this case wallets are considered as payment accounts. and executed on the client’s account; • for custody and administration; and Naturally, each business model must be assessed individually and is ultimately subject to a case-by- case review. Dual authorisation will generally not be relevant in the following cases:
• the purely bilateral exchange of EMTs for other crypto-assets or funds; • where no transactions or transfers of crypto-assets occur, as may be the case for providing advice on and providing portfolio management of crypto- assets; • in placing services, the execution of orders and the reception and transmission of orders for crypto- assets on behalf of clients; and • in services where CASPs act as trading intermedi - aries. The affected companies have been granted a transi - tion period. However, real clarity will only come with the new legislative acts. Under the Council’s draft of the Payment Services Regulation (PSR), a pay - ment institution is expected to be permitted to pro - vide crypto-asset services involving e-money tokens without MiCA authorisation, provided these services are regarded as equivalent to the payment services for which the payment institution is authorised under PSD3. Dual supervision is to be avoided by giving precedence to the authorisation under PSD3. Con - versely, if the crypto-asset service provider already holds MiCA authorisation, it will only benefit from certain facilitations but will still require PSD3 authori - sation, although some licensing requirements can be satisfied by submitting the documentation already provided in the MiCA authorisation process. Tokenisation The regulatory regime applicable to issuers offering tokenised assets depends on the classification of the underlying asset. If the asset is a share in a company that it is a security token then the traditional finan - cial regulatory regime applies. If gold, cars or other real estate are being tokenised, the crypto-asset may either be classified as a so-called ART or a “stand - ard” crypto-asset. As a result, either MiCA or MIFID II apply. DLT Pilot Regime The DLT Pilot Regime (Regulation (EU) 2022/858), allows for temporary exemptions from specific MiFID II and Central Securities Depositories Regula - tion (CSDR) rules to test trading and settlement of tokenised financial instruments on distributed ledger technology (DLT). The DLT Pilot Regime is there -
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