AUSTRIA Law and Practice Contributed by: Oliver Völkel and Philipp Ley, CERHA HEMPEL
10.5 Regulation of Blockchain Asset Trading Platforms Under MiCA, blockchain asset trading platforms must obtain authorisation as CASPs from the national com - petent authority (eg, the FMA in Austria). They have to ensure fair, orderly and transparent trading, imple - ment effective AML/KYC measures and take steps to prevent market abuse. The specific licensing requirement depends on the platform’s business model. A CASP must obtain authorisation for one or more services, such as: the operation of a trading platform; the exchange of cryp - to-assets for funds or other crypto-assets; the execu - tion of orders on behalf of clients; or the reception and transmission of orders. In particular, the classification depends on whether: • the CASP is acting as a principal counterparty; • is matching client buy and sell orders; or • is merely executing client orders without interme - diation. Secondary market trading, whether via intermediaries or peer to peer, is also covered under MiCA. CASPs facilitating this trading must comply with conduct, governance and operational requirements. While peer-to-peer trading without an intermediary may fall outside the scope of full MiCA, it remains subject to general legal standards, especially for fraud, AML and consumer protection. 10.6 Staking Staking is not directly regulated as a standalone ser - vice under MiCA. However, if staking involves a pro - vider holding clients’ crypto-assets or private keys to perform staking operations, it may fall under the regu - lated activity of custody and administration of crypto- assets. In these cases, the service provider must be authorised as a CASP under MiCA. These staking services are considered ancillary to cus - tody services and are subject to the same regulatory obligations. This includes requirements to segregate client assets, minimise the risk of loss and assume liability for any loss attributable to the provider.
According to ESMA, when staking is offered alongside other crypto-asset services, the provider must obtain explicit client consent. This is because staking may
affect clients’ access to their assets. 10.7 Crypto-Related Lending
Under MiCA, the provision of crypto lending services is not explicitly regulated. Recital 94 of MiCA states that it does not address the lending and borrowing of crypto-assets, including EMTs, and therefore does not prejudice the applicable national law. However, the European authorities (in particular the EBA and ESMA) assess the feasibility and necessity of regulating the lending and borrowing of crypto-assets. This assessment is to be based on a report analys - ing recent developments in crypto-assets, including crypto lending and borrowing. The EBA and ESMA have identified several risks asso - ciated with crypto lending and borrowing, such as excessive leverage, information asymmetries, expo - sure to money laundering and terrorist financing (ML/ TF) risks and systemic risks arising from re-hypothe - cation and collateral chains. These findings suggest that while crypto lending is not currently regulated under MiCA, future regulatory measures may be con - sidered to address these risks. In the absence of specific EU-level regulation, the provision of crypto lending services may fall under national laws and regulations, which can vary between member states. In Austria, there is no stricter local approach or heightened supervisory expectations. 10.8 Cryptocurrency Derivatives The offering of cryptocurrency derivatives is regulated in the EU. Unlike crypto-assets under MiCA, deriva - tives fall under MiFID II and MiFIR because they are classified as financial instruments. This means that offering, trading or brokering crypto- derivatives (eg, futures, options on Bitcoin) requires authorisation as a MiFID investment firm, with full compliance obligations (licensing, conduct of busi - ness rules, investor protection and market transpar - ency).
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