AUSTRIA Law and Practice Contributed by: Oliver Völkel and Philipp Ley, CERHA HEMPEL
ing the authorisation process and requirements. This includes information on the necessary documentation, timeframes and procedures to obtain the required licences under MiCA. The FMA has also issued an information document to assist applicants in preparing their submissions, providing clarity on the expectations and standards to be met. These initiatives demonstrate the FMA’s com - mitment to establishing a clear regulatory framework for blockchain and crypto-asset activities in Austria. The FMA takes a proactive stance towards blockchain and crypto-asset regulation. 10.3 Classification of Blockchain Assets Blockchain-based assets are generally considered financial instruments in Austria. Under MiCA, crypto- assets are classified into distinct categories, each of which is subject to specific regulatory regimes. • Financial instruments: tokens that qualify as finan - cial instruments, such as security tokens repre - senting shares or bonds, are governed by MiFID II and are excluded from MiCA’s scope. Determining whether a token is a financial instrument depends on its rights and characteristics. ESMA has devel - oped guidelines to clarify this classification. • ARTs: these tokens aim to maintain a stable value by referencing multiple assets, including curren - cies, commodities or other crypto-assets. Issuers of ARTs must obtain authorisation, meet capital requirements and adhere to governance and dis - closure obligations under MiCA. • EMTs: these reference a single official currency and are intended for payment purposes. They are subject to stringent requirements similar to those under the Electronic Money Directive, including authorisation, capital adequacy and redemption rights. • Other crypto-assets: this category includes tokens that do not fall within the previous classifications. Issuers must publish a white paper detailing the token’s features and risks but are not subject to authorisation requirements. • NFTs: these are unique and are generally excluded from MiCA. However, if NFTs are issued in a large
series or are fungible in practice, they may fall within MiCA’s scope. In summary, the regulatory treatment of blockchain assets in Austria depends on their classification under MiCA and MiFID II, with specific obligations tailored to each category. 10.4 Regulation of “Issuers” of Blockchain Assets Issuers of crypto-assets are subject to specific regu - latory requirements, particularly concerning the initial offering of these assets. Issuers of crypto-assets must be legal entities and have to draft, notify and publish a comprehensive white paper before making a public offer or seeking admission to trade. This white paper must include: detailed information about the issuer; the character - istics of the crypto-asset; the rights and obligations attached to it; the underlying technology; and associ - ated risks. The white paper must be submitted to the competent supervisory authority and be made pub - licly available for as long as the crypto-asset is held by investors. Specific exemptions to the white paper requirement exist, such as: offerings to fewer than 150 persons per member state; offerings not exceeding EUR1 million over 12 months; or distributions of crypto-assets for free (eg, airdrops). However, these exemptions do not apply to ARTs and EMTs, which are always subject to the full set of requirements. Issuers of ARTs and EMTs face more stringent require - ments. These white papers must also detail: stabilisa - tion mechanisms; reserve assets; custody arrange - ments; and redemption rights associated with the tokens. Issuers of ARTs must obtain authorisation from their national competent authority and their white papers require formal approval before the tokens can be offered to the public or admitted to trading. EMT issuers only have to notify the white paper. This is because they must hold a licence as a bank or e-mon - ey institution and therefore already provide a higher level of institutional security.
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