AUSTRIA Trends and Developments Contributed by: Oliver Völkel, CERHA HEMPEL
Double authorisation – MiCA and PSD2 E-money tokens are crypto-assets generally regu - lated under MiCA. At the same time, they qualify as electronic money and therefore as “funds” within the meaning of PSD2. This creates regulatory overlap. Crypto-asset service providers that provide payment services in connection with their activities may there - fore require an additional authorisation under PSD2. Whether dual authorisation is required always depends on a CASP’s specific business model. The regulator will examine and ultimately assess each case individ - ually. Nevertheless, the European Banking Authority (EBA) no-action letter provides guidance on how to address the overlap. Some services will generally not be affected by dual regulation. This includes purely bilateral exchanges of EMTs for other crypto-assets or funds; cases where no crypto-asset transactions or transfers take place, such as standalone advisory services or portfolio management; placement services, as well as the execution, reception and transmission of orders for crypto-assets on behalf of clients where PSD2 exclu - sions apply; and services in which CASPs act solely as trading intermediaries. By contrast, CASPs that – in connection with EMTs – provide custody and administration of crypto-assets, transfer services for crypto-assets, and the placement of crypto-assets on behalf of clients will, in most cas - es, require an additional authorisation under PSD2. A key difficulty lies in the absence of clear conflict rules and the resulting uncertainty as to which regulatory regime takes precedence. As a general principle, each activity should, as far as possible, be governed by only one supervisory framework. In some cases, PSD2 will apply on a complementary basis, while in others MiCA, as the lex specialis, will take precedence. Real clarity will only come with the new legislative acts. Under the European Council’s draft of the Pay - ment Services Regulation (PSR), a payment institution is expected to be permitted to provide crypto-asset services involving EMTs without a MiCA authorisation, provided these services are regarded as equivalent to the payment services for which the institution is authorised under PSD3. Dual supervision is to be
avoided by giving precedence to the authorisation under PSD3. Conversely, if the CASP already holds a MiCA authorisation, it will only benefit from certain facilitations but will still require a PSD3 authorisation, for which some licensing requirements can be sat - isfied by submitting the documentation already pro - vided in the MiCA authorisation process. The affected companies were granted a transition period until 2 March 2026, during which national authorities were instructed not to require additional e-money authorisation from CASPs. Between MiCA and MiFID II – Where Do Crypto- Assets Belong? So far, the dual authorisation is only relevant for issu- ers of EMTs, because up to now, not a single issuer of asset-referenced tokens has been entered in the European Securities and Markets Authority (ESMA) register. One reason for this could be that, in the case of ARTs, the distinction from financial instruments is particularly difficult. The referencing of ARTs to other assets for value stability shows a certain similarity to derivatives. The Markets in Financial Instruments Directive II (MiFID II) does not include a one-size-fits-all definition for all types of financial instruments. This has made it difficult to distinguish clearly between crypto-assets that previously fell under MiCA or MiFID II. Moreover, EU member states have taken different approaches as to what qualifies as a financial instrument and what does not. To address this, ESMA has published guidelines to clarify the distinction and reduce national discrepancies. Why is the classification of crypto-assets as financial instruments essential, and who is responsible? MiCA only applies to crypto-assets that are not cov - ered by existing EU financial services legislation, such as MiFID II. Crypto-assets that qualify as financial instruments are therefore excluded from its scope. The classification is essential as it determines the regulatory treatment of crypto-assets, influencing how they are issued, traded and managed within the EU financial markets. Crypto-assets that qualify as finan - cial instruments under MiFID II are likely to be subject
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