Crypto-assets: new ESMA reminder, services involving stablecoins that do not comply with MiCAR must cease

Crypto-asset service providers (CASPs) authorised under the Markets in Crypto-Assets Regulation (MiCAR) must cease providing any services, including indirectly, involving stablecoins that do not comply with EU rules. This clarification concerns asset-referenced tokens (ARTs) and electronic money tokens (EMTs) for which the conditions laid down in the Regulation for an offer to the public or admission to trading in the European Union are not met. This is the position set out by the European Securities and Markets Authority (ESMA) in a formal Opinion published on 8 October and addressed to national competent authorities.

The Opinion is based, in particular, on the duty of service providers to act honestly, fairly and professionally in the best interests of their clients. Providing services involving tokens that lack the required safeguards — from issuers' obligations and redemption rights to asset reserves, governance and disclosure requirements — means knowingly exposing clients to risks that the service provider is unable to identify, manage or adequately mitigate.

The scope is broad and covers all crypto-asset services, whether provided individually or in combination, including custody. Warnings or disclaimers from clients will not be sufficient: according to ESMA, no disclosure can replace the safeguards that would otherwise be lacking. Crypto-asset service providers must therefore put in place technical, contractual and organisational measures to prevent clients in the European Union from purchasing these tokens or increasing their existing exposure.

For any existing positions, regularisation must take place as soon as possible and, in any event, within three months of the publication of the Opinion. National authorities may allow, where strictly necessary for an orderly exit aimed at preventing harm to investors, residual services involving the sale, conversion or transfer of tokens, limited in time and subject to strict supervision.

ESMA, in cooperation with the relevant national competent authorities, will regularly monitor the timely implementation of the Opinion.