On 29 January 2024, ESMA published a CP on the draft Guidelines on the conditions and criteria for the qualification of crypto-assets as financial instruments. The initiative is meant to clarify the delineation of the scopes of application of MiCAR and Directive 2014/65/EU (MiFID II) and to ensure consistency across the EU. The aim of the draft Guidelines is to specify conditions and criteria for determining whether a crypto-asset should qualify as a financial instrument and thus ensuring the common, uniform and consistent application of the provisions in Art. 2(4)(a) MiCAR. The Guidelines also provide clarifications on certain features of utility tokens, non-fungible tokens (NFTs) and hybrid tokens. The draft guidelines apply to competent authorities and to financial market participants, including issuers and crypto-asset service providers (CASPs) as defined in MiCAR, investors and all persons engaging in activities relating to crypto-assets. The deadline for comments by stakeholders is 29 April 2024. The reply form to the consultation can be found here. All replies to the consultation should be submitted online at www.esma.europa.eu under the heading ‘Your input – Consultations’. ESMA will consider feedback to the consultation in Q2 2024 and the final ESMA report is expected to be published by the end of 2024 at the latest.
