On 19 March 2025, the European Securities and Markets Authority (‘ESMA’) published the official translation of the Guidelines on the conditions and criteria for the qualification of crypto-assets as financial instruments. These guidelines have been issued on the basis of the delegation contained in Article 2(5) of the MiCA Regulation[1]. They aim to set out the conditions and criteria for determining whether a crypto-asset should qualify as a financial instrument. Those guidelines shall cover, inter alia, the following issues:
- the classification of crypto-assets as transferable securities;
- the classification of crypto-assets as other types of financial instruments, including money-market instruments, units in collective investment undertakings, derivative contracts and emission allowances;
- general information on the concept of crypto-assets, including classification as crypto-assets, crypto-assets which are unique and not fungible with other crypto-assets (‘NFTs’) and hybrid crypto-assets.
The guidelines can be consulted at the following link:
https://www.esma.europa.eu/sites/default/files/2025-03/ESMA75453128700-1323_Guidelines_on_the_conditions_and_criteria_for_the_qualification_of_CAs_as_FIs.pdf
[1] Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on Markets in crypto-assets and amending Regulations (EU) No 1093/2010 and (EU) No 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937 (OJ L 150 9.6.2023, p. 40).