+ESAs Guidelines on templates for explanations and opinions, and the standardised test for the classification of crypto-assets under MiCAR (JC 2024 28)
---+1. Compliance and reporting obligations
------+Status of these guidelines
---------+1. These Guidelines are issued pursuant to Article 16 of Regulation (EU) No 1093/2010, Regulation …
---------+2. Competent authorities as defined in point (35)(a) of Article 3(1) of Regulation (EU) 2023/1114 …
------+Reporting requirements
---------+3. Within two months of the date of publication of these guidelines on the websites of the ESAs in …
---------+4. Notifications will be published on the websites of each of the ESAs, in line with Article 16(3) …
---------+5. Financial market participants are not required to report whether they comply with these …
---+2. Subject matter, scope and definitions
------+Subject matter
---------+6. In accordance with Article 97(1) of Regulation (EU) 2023/1114, these joint Guidelines establish …
------+Scope of application and addressees
---------+7. These Guidelines apply to competent authorities, as defined in Article 3(1), point (35)(a), of …
---------+8. These Guidelines also apply to: a. offerors, persons seeking admission to trading, or operators …
---------+9. These Guidelines also apply to persons intending to carry out, or carrying out, crypto-asset …
------+Definitions
---------+10. Unless otherwise specified, terms used and defined in Regulation (EU) 2023/1114 have the same …
---+3. Implementation
------+Date of application
---------+11. These Guidelines apply from dd.mm.yyyy, [Please insert date 2 months after the date of …
---+4. Templates and standardised test
------+Template for the purposes of Article 8(4) Regulation (EU) 2023/1114
---------+12. Offerors, persons seeking admission to trading, and operators of trading platforms for …
---------+13. All fields set out in the template should be completed with all information necessary to …
------+Template for the purposes of Article 17(1), point (b)(ii), and Article 18(2), point (e), Regulation (EU) 2023/1114
---------+14. Credit institutions, and legal persons and other undertakings intending to offer to the public …
---------+15. All fields set out in the template should be completed with all information necessary to …
---------+16. The template should be completed by an in-house or external legal adviser. The legal adviser …
------+Standardised test for the classification of crypto-assets
---------+17. Competent authorities and other persons to whom these Guidelines are addressed should apply a …
---------+18. Competent authorities and other persons to whom these Guidelines are addressed should determine …
---------+19. Competent authorities and other persons to whom these Guidelines are addressed should also …
---------+20. If both elements (digital representation of a value and/or right, and transferred and stored …
---------+21. In order to determine if the crypto-asset is within the scope of Regulation (EU) 2023/1114 …
---------+22. Without prejudice to any other relevant materials, the information referred to in paragraph 13 …
---------+23. If none of the exclusions referred to in paragraph 22 apply, competent authorities and other …
---+Annex A - Template
---+Annex B - Template
---+Annex C – Flow chart

English - European Union - Financial Industry -

ESAs Guidelines on templates for explanations and opinions, and the standardised test for the classification of crypto-assets under MiCAR (JC 2024 28)

https://www.eba.europa.eu/activities/single-rulebook/regulatory-activities/asset-referenced-and-e-money-tokens-micar/esas-guidelines-templates-explanations-and-opinions-and-standardised-test-classification-crypto – PDF

1. Overview

1. Compliance and reporting obligations

2. Subject matter, scope and definitions

3. Implementation

4. Templates and standardised test

Annex A - Template

This template is provided for the purposes of the explanation referred to in Article 8(4) of Regulation (EU) 2023/1114. TEMPLATE: EXPLANATION FOR THE PURPOSES OF ARTICLE 8(4) REGULATION (EU) 2023/1114

An explanation prepared for the purposes of Article 8(4) Regulation (EU) 2023/1114 (MiCAR) should contain information for each of the below fields.

Date on which this explanation is is-t u sued

o b n Name of the person(s) a n o i t a o i t a n a l issuing Point of this contact explanation of the	(legal or natural) person(s) (legal or	Please include: name, address, email address, and telephone Please include: number. name, address, email address, and
m r o p x e natural) issuing this explanation	(if differ-	telephone number.

ent to above) f n Confirmation that this explanation is is-

sued for the purposes of MiCAR - r e p , ) s ( r - d a r t o t g n i d a r t Name admission trading of platforms, the to offeror(s), trading, on or whose

Article 8(4) of person(s) operator(s) behalf seeking this of

Please confirm. Please sion of use this the information. Annex to this template for the provi-

o n f explanation is issued

r e ff o o i ss i o s r o t t u o b a m d a g n a r e p o White refers the white (this paper paper should to which submitted be the this	‘final for explanation the version’ purpose of	Please indicate the date of the white paper notified sessed which for the this for purposes the explanation purposes of Article refers. of 8(1) this Please explanation of MiCAR, also and attach and as-	to a
n o i i k r o / of Article 8(1) of MiCAR))		copy of the white paper to this explanation.

t ee a s dn m ) s a Member State(s) in which the offer to

r ( ,

o f n I n o s g n i the public or admission to trading will take place

Applicable law		Please indicate the law applicable to the crypto-as-set as referred to in the white paper. Please indicate the purported regulatory classifica-
Executive summary of the classification of the crypto-asset	regulatory	tion and any key points you wish to highlight in executive summary. Explanation may be provided in an Annex and should	the
Detailed explanation that resentation to which the lates is a crypto-asset within of Article 3(1), point (5), t	the digital rep-white paper re-the meaning of MiCAR	cover all aspects of the definition of ‘crypto-asset’, including the value or right that it represents, and the distributed ledger technology or similar technol-ogy on which the crypto-asset may be transferred stored.	or

ss a - o t p y Detailed set to which explanation the white that	paper the relates crypto-as- is	Explanation may be provided in an Annex and should include asset is all not aspects intended that to demonstrate purport to maintain that the a crypto- stable
r C not an electronic money meaning of Article 3(1), MiCAR	token within the point (7), of	value by reference to an official currency, with full cross-references to the relevant provisions of the white paper. Explanation may be provided in an Annex and should
Detailed explanation that set to which the white not an asset-referenced meaning of Article 3(1), MiCAR	the crypto-as-paper relates is token within the point (6), of	include all aspects that demonstrate that the crypto-asset is not intended to purport to maintain a stable value by reference to another value or right or a combination thereof, with full cross-references the relevant provisions of the white paper.	to

Detailed explanation that the crypto-asset is not any of the following:

- Financial instrument, to in Article 2(4), MiCAR.	as referred point (a), of	Source of definition(s) (EU and/or national law applicable): Case law (including paragraph references, as ap-propriate) to which reference is made in the expla-nation: Regulatory measures or guidance to which refer-ence is made in the explanation (including the Guidelines adopted pursuant to Article 2(5) of MiCAR): Explanation: Note: Explanation may be supplemented in an Annex and should include all aspects that demonstrate the crypto-asset is not a financial instrument. The explanation should indicate why the crypto-asset does not correspond to any of the financial instru-ment types (transferable security, money market strument etc), make full reference to the ESMA Guidelines under Article 2(5) of MiCAR, and any plicable case law, or relevant regulatory or supervi-sory materials issued by the competent authority the purposes of [MiFID2] in the home Member within the meaning of Article 3(1), point (33), of MiCAR. Source of definition(s) (EU and/or national law applicable): Case law (including paragraph references, as ap-propriate) to which reference is made in the expla-nation: Regulatory measures or guidance to which refer-	as that in-ap-for State as
- Deposits, including	structured	ence is made in the explanation:

deposits, as referred to in Article

2(4), point (b),	of MiCAR	Explanation: Note: Explanation should include all aspects that demonstrate that the crypto-asset is not a deposit. The explanation should make full reference to any applicable case law, or relevant regulatory or super-visory materials issued by the competent authority for the purposes of [CRD/CRR] in the home Member State within the meaning of Article 3(1), point (33), of MiCAR. Source of definition(s) (EU and/or national law applicable): Case law (including paragraph references, as ap-	as
- Funds as referred 2(4), point (c),	to in Article of MiCAR	propriate) to which reference is made in the expla-nation: Regulatory measures or guidance to which refer-ence is made in the explanation: Explanation: Note: Explanation should include all aspects that demonstrate that the crypto-asset is not funds. explanation should make full reference to any appli-cable case law, or relevant regulatory or supervisory materials issued by the competent authority for purposes of Directive (EU) 2015/2366 of the Euro-pean Parliament and of the Council in the home Member State within the meaning of Article 3(1), point (33), of MiCAR .	The the

Brief explanation, unless more detailed assessment is relevant, that the crypto-asset is not any of the following:

- Securitisation ferred to in Article (d), of MiCAR - Non-life or life ucts or reinsurance sion contracts Article 2(4), point	positions as re-2(4), point insurance prod- or retroces-as referred to in (e), of MiCAR	Note: Explanation should confirm that the crypto-as-set is not a securitisation position. Note: Explanation should confirm that the crypto-as-set is not a non-life or life insurance product.
- Pension product Article 2(4), point	as referred to in (f), of MiCAR	Note: Explanation should confirm that the crypto-as-set is not a pension product.

- Officially recognised occupa-

tional pension ferred to in Article (g), of MiCAR - Individual pension referred to in Article (h), of MiCAR - Pan-European as referred to point (i), of MiCAR - Social security ferred to in Article of MiCAR	schemes as re-2(4), point products as 2(4), point Pension Products in Article 2(4), schemes as re-2(4), point (j),	Note: Explanation should confirm that the crypto-as-set is not an occupational pension scheme. Note: Explanation should confirm that the crypto-as-set is not an individual pension product. Note: Explanation should confirm that the crypto-as-set is not a Pan-European Pension Product. Note: Explanation should confirm that the crypto-as-set is not a social security scheme. Note: Please set out such other information as you
Additional relevant information		consider appropriate to explain the regulatory classi-fication of the crypto-asset.
ANNEX TO TEMPLATE: INFORMATION	ABOUT Regulated status (if	OFFERORS, PERSONS SEEKING ADMISSION any) of	TO TRADING, OPERATORS OF TRADING PLATFORMS
Name of the offeror(s), per-son(s) seeking admission to trading, or operator(s) of trading platforms, on whose behalf this explana-tion is issued	the offeror(s), person(s) seeking admission ing, or operator(s) sation or registration carry out financial activity/ies)	to trad-(authori- LEI (if applicable) to services	EEA/Member State of es-tablishment, branch or reg- Point of contact istered office (as applicable) Please indicate jurisdiction and Please include: name, address, status (establishment, branch, email address, and telephone registered office). number.

Annex B - Template

This template is provided for the purposes of the legal opinion referred to in Article 17(1), point (b)(ii) and Article 18(2), point (e) of Regulation (EU) 2023/1114. TEMPLATE: LEGAL OPINION FOR THE PURPOSES OF ARTICLE 17(1), point (b)(ii) and ARTICLE 18(2), point (e) REGULATION (EU) 2023/1114

An Opinion issued for the purposes of these articles should contain information for all the below fields.

Date on which this Opinion is issued

Name of the person(s) (legal or natural) issuing this Opinion

Please include: name, address, email address, and telephone number.

o i n i Point of contact of the person(s) (legal or p O t natural) to above) issuing this Opinion (if different

Please include: name, address, email address, and telephone number.

o Declaration of any potential conflicts of

b a interest and measures to manage effec-

o i tively those conflicts

a m r o f n I a Evidence legal adviser of the person(s) ability to act as	Please degree, certificate include licence, to practice as professional much law information etc. registration as possible, number, e.g. Specify:
Purpose for which this Opinion is issued	- Article 17(1), point (b)(ii), or - Article 18(2), point (e), of MiCAR

- Name of the credit institution/financial

d a institution/other undertaking intending

k ee to offer to the public, or seek admission

s r to trading of the crypto-asset on whose

o c behalf this Opinion is issued

bup e h Regulated tration to carry status out (authorisation financial services or regis- ac-

E.g. etc. credit institution, electronic money institution

t tivity/ies)

o t LEI (if applicable)

r e ff g n i EEA/Member State of establishment

o o t d a r t g n o t Point of contact	Please include: name, address, email address, and telephone number.
i dn e t n o i ss Intention of the credit institution/finan-	Specify: - Offer to the public

n i n i m cial institution/other undertaking - Seek admission to trading

o s r White paper to which this Opinion refers e p ( this should be the ‘final version’ of the t white paper submitted for the purpose of u o b Article 17(1), point (b) (ii) and Article 18 (2), a n point (e) of MiCAR )

Please indicate the date of the white paper assessed for the purposes of this Opinion and to which this Opinion refers. Please also attach a copy of the white paper to this Opinion.

i t a m Member State(s) in which the offer to r o the public or admission to trading will

f n I take place

t e Applicable law

Please indicate, the law applicable to the crypto-as-set as referred to in the white paper.

s a - o t Executive summary of the regulatory	Please tion and indicate any key the points purported you wish regulatory to highlight classifica- in the
p y r classification of the crypto-asset	executive summary.
C Opinion, with detailed explanation, that the digital representation to which this	Explanation may be provided in an Annex and should cover all aspects of the definition of ‘crypto-asset’,
Opinion relates is a crypto-asset within the meaning of Article 3(1), point (5), of MiCAR	including the value or right, and the distributed ledger technology or similar technology on which the crypto-asset may be transferred or stored. Description should set out the value, right or official
Detailed description of the value or right or official currencies to which the crypto-asset refers	currencies to which the crypto-asset refers and is in-tended to purport to maintain a stable value, with full cross-references to the relevant provisions of the white paper. Explanation may be provided in an Annex to the
Opinion, with detailed explanation, that the crypto-asset to which this Opinion re-lates is not an electronic money token within the meaning of Article 3(1), point (7), of MiCAR	Opinion and should include all aspects that demon-strate that the crypto-asset is not intended to pur-port to maintain a stable value by reference to a sin-gle official currency, with full cross-references to the relevant provisions of the white paper.

Opinion, with detailed explanation, that the crypto-asset to which this Opinion re-lates is not any of the following:

- Financial instrument, as referred	Source of definition(s) (EU and/or national law as applicable): Case law (including paragraph references, as ap-propriate) to which reference is made in the expla-nation: Regulatory measures or guidance to which refer-ence is made in the explanation (including the Guidelines pursuant to Article 2(5) of MiCAR): Explanation:
to in Article 2(4), point (a), of MiCAR.	Note: Explanation may be supplemented in an Annex and should include all aspects that demonstrate that the crypto-asset is not a financial instrument. The explanation should indicate why the crypto-asset does not correspond to any of the financial instru-ment types (transferable security, money market in-strument etc), make full reference to the ESMA Guidelines under Article 2(5) of MiCAR, and any ap-plicable case law, or relevant regulatory or supervi-sory materials issued by the competent authority for the purposes of [MiFID2] in the home Member State within the meaning of Article 3(1), point (33), of MiCAR. Source of definition(s) (EU and/or national law as applicable): Case law (including paragraph references, as ap-
- Deposits, including structured deposits, as referred to in Article 2(4), point (b), of MiCAR	propriate) to which reference is made in the expla-nation: Regulatory measures or guidance to which refer-ence is made in the explanation: Explanation: Note: Explanation may be provided in an Annex and should include all aspects that demonstrate that the crypto-asset is not a deposit. The explanation should make full reference to any applicable case law, or relevant regulatory or supervisory materials issued by the competent authority for the purposes of [CRD/CRR] in the home Member State within the meaning of Article 3(1), point (33) of MiCAR. Source of definition(s) (EU and/or national law as applicable): Case law (including paragraph references, as ap-propriate) to which reference is made in the expla-nation: Regulatory measures or guidance to which refer-ence is made in the explanation:
- Funds as referred to in Article 2(4), point (c), of MiCAR	Explanation: Note: Explanation may be provided in an Annex and that demonstrate that the crypto-asset is not funds. The explanation should make full reference to any applicable case law, or relevant regulatory or super-visory materials issued by the competent authority for the purposes of [PSD] in the home Member State within the meaning of Article 3(1), point (33), of MiCAR .

Brief explanation, unless more detailed assessment is relevant, that the crypto-asset is not any of the following:

- Securitisation positions as re-ferred to in Article 2(4), point (d), of MiCAR - Non-life or life insurance prod-ucts or reinsurance or retroces-sion contracts as referred to in Article 2(4), point (e), of MiCAR - Pension products as referred to in Article 2(4), point (f), of MiCAR - Officially recognized occupa-tional pension schemes as re-ferred to in Article 2(4), point (g), of MiCAR - Individual pension products as referred to in Article 2(4), point (h), of MiCAR - Pan-European Pension Products as referred to in Article 2(4), point (i), of MiCAR	Note: Explanation should confirm that the crypto-as-set is not a securitisation position. Note: Explanation should confirm that the crypto-as-set is not a non-life or life insurance product. Explanation should confirm that the crypto-asset is not a pension product. Note: Explanation should confirm that the crypto-as-set is not an occupational pension scheme. Note: Explanation should confirm that the crypto-as-set is not an individual pension product. Note: Explanation should confirm that the crypto-as-set is not a Pan-European Pension Product.
- Social security schemes as re-ferred to in Article 2(4), point (j), of MiCAR	Note: Explanation should confirm that the crypto-as-set is not a social security scheme. Source of definition(s) (EU and/or national law as applicable): Case law (including paragraph references, as ap-propriate) to which reference is made in the expla-nation: Regulatory measures or guidance to which refer-ence is made in the explanation:
Opinion, with full explanation that the crypto-asset is within the meaning of Article 3(1), point (6), of MiCAR	Explanation: Note: Explanation should not repeat the foregoing but should describe the attributes of the crypto-asset that conform to the definition of ‘asset-referenced token’. The explanation may be provided in an An-nex to this Opinion and should refer to all relevant provisions of the white paper, among any other ma-terials, that are considered relevant in supporting the Opinion as to the regulatory classification of the crypto-asset. Note: Please set out such other information as you
Additional relevant information	consider appropriate to explain the regulatory classi-fication of the crypto-asset.

Annex C – Flow chart

This flow chart is provided for the purposes of the standardised test referred to in Article 97(1) of Regulation (EU) 2023/1114.

1.1 References

1.2 Identified Requirements

1.3 Related Standards

2. Identified Requirements

Requirements
Source	Requirement

3. Related Standards

Standards
Source	Requirement

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