ESMA Publishes Final Report on Crypto-Asset Classification Guidelines

The European Securities and Markets Authority (ESMA) has released its Final Report on Guidelines for Templates and Standardized Tests related to the classification of crypto-assets under Article 97(1) of Regulation (EU) 2023/1114. These guidelines aim to provide harmonized templates for explanations and legal opinions, ensuring consistency in regulatory classification under the Markets in Crypto-Assets Regulation (MiCAR).

The templates address the requirements under Article 8(4), mandating detailed explanations for why a crypto-asset should not be considered an e-money token (EMT), asset-referenced token (ART), or a crypto-asset excluded from MiCAR. Similarly, under Article 17(1), issuers of ARTs—particularly credit institutions—are required to submit legal opinions validating that their assets meet the regulatory criteria for classification.

ESMA’s move comes in response to challenges faced by competent authorities in reviewing the classification of crypto-assets due to inconsistent or insufficient information. Without standardized templates, authorities across Member States risk regulatory arbitrage, inconsistencies in application, and potential lapses in compliance.

The guidelines introduce a standardized test to harmonize how crypto-assets are assessed under MiCAR. This test seeks to clarify whether a crypto-asset falls within the scope of Titles II, III, or IV of MiCAR, streamlining the classification process. ESMA also emphasized the importance of balancing harmonization with flexibility, acknowledging that national interpretations of related financial products may differ.

By implementing these measures, ESMA aims to ensure that competent authorities receive sufficiently detailed and consistent information. This will strengthen the regulatory framework, reduce disparities between Member States, and mitigate the risks of regulatory arbitrage. The publication of these guidelines marks a significant step towards a unified approach to crypto-asset regulation in the EU, providing clarity for issuers and enhancing market stability.