European Union: Opened Consultation on Guidelines for Classification of Crypto-Assets

On 29 January 2024, the European Securities and Markets Authority (ESMA) opened a consultation on guidelines on conditions and criteria for the classification of crypto-assets as financial instruments under the Markets in Crypto Assets Regulation (MiCA). The consultation is aimed at establishing clear conditions and criteria for the qualification of crypto-assets as financial instruments, bridging the MiCA regulation and the Markets in Financial Instruments Directive II (MiFID II) and ensuring consistency across the European Union. The current consultation seeks input from stakeholders and market participants on the appropriate implementation of MiCA, particularly concerning specific mandates set to be developed by December 2024. Recognising the diverse approaches to the national transposition of MiFID across Member States, ESMA noted that concerns arise about the inconsistent application of the "financial instrument" definition.