This post first appeared as Blog post at FIN LAW.
The Markets in Crypto Assets Regulation (MiCA) will take full effect on December 30, 2024. From this point on, the regulations regarding crypto asset white papers also apply. These require, among other things, providers who publicly offer crypto assets other than asset-referenced tokens or e-money tokens to prepare, submit and publish a corresponding crypto asset white paper to the responsible authority. Basically the same obligations apply to people who apply for the admission of such crypto assets to trading.
Exceptions to this obligation arise from the MiCA itself, such as in the case of public offers to fewer than 150 natural or legal persons or exclusively to qualified investors. An exception to the obligation to prepare a MiCA white paper when the crypto asset is admitted to trading exists if the crypto asset in question is already admitted to trading in the Union and a corresponding MiCA white paper has been created and the person responsible for the creation of the white paper is responsible for its use agrees in writing. In this context, the issuers of crypto assets are initially obliged to prepare a MiCA white paper. They will regularly have a corresponding interest in both the public offering of the crypto assets and their admission to trading. But can these obligations also affect the operator of a trading platform?
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Operator of a trading platform as a provider of crypto assets as part of a public offer
Within the framework of MiCA, the term provider means a natural or legal person or other company that offers crypto assets to the public. Whether the operator of a trading platform can fall under this is ultimately a question of the individual case. According to MiCA, the sole admission to trading or the publication of bid and ask prices does not qualify as a public offer of crypto assets. In this respect, an operator of a trading platform would only be obliged to create a white paper as a provider if his activities went beyond this.
However, not every further activity should automatically result in the operator having to create a white paper. Rather, the operator’s activity must constitute a public offer. This means that the information published about the crypto asset contains the terms and conditions of the crypto asset in order to enable potential holders to decide whether to purchase the crypto asset. It would be desirable if ESMA would publish appropriate guidelines as to when a public offer is made for crypto assets that have already been listed.
Operator of a trading platform as initiator for the admission of crypto assets to trading
If the operator of a trading platform is the initiator of the admission of the crypto asset to trading, he is also responsible for ensuring that such a white paper is published if the corresponding crypto asset white paper has not yet been published in the cases prescribed by MiCA. Specifically, the legislator is referring to the “initiative” of the operator of the trading platform. As a rule, the initiative for admission to trading is probably taken by the issuer or e.g. B. originate from the issuer’s sales partner. However, if the initiative comes from the operator of the trading platform itself, they should also be subject to the corresponding obligations.
Unfortunately, the regulation does not specify when exactly the initiative to admit a crypto asset for trading comes from the operator or another person. In this respect, the operators of trading platforms are also advised to carry out a detailed examination on a case-by-case basis. This is likely to apply even more to operators whose business model includes not only the trading platform but also the tokenization of financial products and their distribution. Depending on the field of activity, the threshold to becoming an initiator could be exceeded relatively quickly.
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