This post first appeared as Blog post at FIN LAW.
The legal effect will gradually develop in the European Union from June 30, 2024 Markets in Crypto Assets Regulation (MiCAR) stipulates that a crypto white paper must be created when crypto assets are publicly offered or when applying for their admission to trading on a trading platform.
In the first three parts of the series, we looked at the content requirements for a white paper in the event of an offer or approval of crypto assets other than asset-referenced tokens or e-money tokens.
In this part we analyze what effects a MiCAR white paper has on the marketing of the corresponding crypto assets. In this context, MiCAR uses the term marketing communications. Unfortunately, MiCAR does not provide an official definition of the term.
The recitals indicate that advertising messages and marketing materials that are also distributed via new channels such as social media platforms should be covered. The information contained in marketing communications must be fair, clear and not misleading. The principle applies that the information in advertising messages and marketing materials should correspond to the information provided in a crypto white paper.
Marketing communications must comply with MiCAR requirements
The principle that marketing communications must be consistent with the information in the MiCAR white paper can of course only apply if one has to be created. But regardless of the existence of a crypto white paper, marketing communications must be clearly identifiable as such. If a MiCAR white paper has been created, this must be referred to in the marketing documents and further information must be provided about the provider or the person who applies for the admission of the crypto assets to trading or the operator of the trading platform for the crypto assets in question.
In particular, an internet address, a telephone number and an email address must be provided in order to contact us. For cryptoassets other than asset-referenced tokens or e-money tokens, a statement should be included that no authority has approved the marketing communications. If the creation of a crypto white paper is necessary, no marketing materials may be distributed before the crypto white paper is published. However, market explorations are also permitted beforehand.
The supervisory authorities in the Member States in which the marketing communications are distributed are authorized to check whether the communications comply with the requirements of MiCAR. If a material new factor, a material error or a material inaccuracy has emerged that may affect the valuation of the crypto assets, the marketing communications as well as the MiCAR white paper must be updated.
The transmission and publication of marketing communications
The provider of crypto-assets, persons applying for the admission of such crypto-assets to trading, or operators of trading platforms for such crypto-assets must submit the MiCAR white paper to the competent authority of their home Member State. In the case of marketing communications, this only happens at the request of the supervisory authorities.
The providers of the crypto-assets and persons applying for admission to trading must publish their marketing communications on their publicly accessible website in a timely manner and in any case before the start date of the public offer of the crypto-assets or the start date of the admission. The marketing communications must remain available on the website of the providers or persons applying for admission to trading for as long as the crypto assets are held by the public.
Where marketing communications have been submitted to the regulatory authorities, the marketing communications must be consistent with the version submitted to the competent authority and with any amended version.
This might also interest you