On 17 December 2024, the European Securities and Markets Authority (‘ESMA’) published its final draft of guidelines on the conditions and criteria for qualification of crypto-assets as financial instruments. The guidelines have been drawn up on the basis of the delegation contained in Article 2(5) of Regulation 2023/1114[1].
The scope of Regulation 2023/1114 covers crypto-assets that are not currently covered by existing EU financial services legislation, such as MiFID II[2]. In this context, ESMA has been mandated to develop guidelines on the conditions and criteria for qualification crypto-assets as financial instruments.
This qualification is essential as it determines the regulatory treatment of crypto-assets, affecting how they are issued, traded and managed on EU financial markets. The guidelines ensure a consistent approach at national level as regards which crypto-assets should be considered as financial instruments subject to a sector-specific regulatory framework other than Regulation 2023/1114. In accordance with the principle of technological neutrality, it is irrelevant how and by means of which technology financial instruments are issued and transferred. If a digital asset is issued using distributed ledger technology but meets the requirements and features to be categorised unambiguously as a financial instrument, it should be treated as such and remain regulated under MiFID II rather than under Regulation 2023/1114.
The final draft of the above-mentioned guidelines can be consulted at this link:
https://www.esma.europa.eu/sites/default/files/2024-12/ESMA75453128700-1323_Final_Report_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).
[2] Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (recast) (OJ L 173 12.6.2014, p. 349).