ESMA의 MiCA 개정 의견서 핵심 제안

“Article 97(3) of MiCA provides that competent authorities may request ESMA, the EBA or EIOPA, as appropriate, for a non-binding opinion on the classification of a crypto-asset, including whether it falls outside the scope of MiCA (and falls under MiFID II instead). ESMA has so far only issued one non-binding opinion upon the request of an NCA. ESMA is concerned that the non-binding nature of such opinions is not, in itself, sufficient to ensure supervisory convergence across the EU.”

“ESMA is of the view that settlement in ARTs or EMTs should not prevent a derivative from qualifying as a financial instrument under MiFID II. Clarifying this point in the legislative framework would promote legal certainty, support supervisory convergence and reduce the risk of regulatory arbitrage.”

“ESMA invites the EC to amend MiCA directly introducing in the legal text a clear definition of DeFi to overcome the uncertainty currently embedded in Recital 22.”

“The Regulation could clarify that where a CASP performs such a role, it should be subject to appropriate obligations, including disclosure of risks associated with DeFi protocols; transparency regarding protocol selection and routing practices; management of conflicts of interest; due diligence on protocols made available through the interface; operational and cybersecurity safeguards.”

“ESMA invites the Commission to amend the Regulation explicitly providing that a CASP cannot provide any licensable service under MiCA in relation to ARTs or EMTs that are not compliant with the applicable requirements under MiCA.”

“ESMA proposes to clarify in MiCA that the authorisation for transfer services equivalent to investment services already authorised under MiFID II for investment firms which notify per Article 60 the provision of crypto assets services does not require these firms to apply for a license also under Article 63 of MiCA.”

“ESMA proposes to align capital requirements for CASPs with IFR/IFD (i.e. delete the limitative list of variable costs that can be deducted for the purpose of the calculation of total fixed overheads so that further variable costs can be deducted in line with IFR/IFD requirements).”

“ESMA proposes that ESMA, in addition to clear powers granted to NCAs at national level, is assigned direct powers to require the relevant crypto-asset service provider to immediately freeze these crypto-assets as long as needed for the proper investigation and enforcement by national enforcement authorities and relevant competent authorities under Directive (EU) 2015/849.”

“ESMA thus proposes to introduce the possibility for ESMA to take permanent product intervention measures (in addition to the temporary measures already allowed to ESMA, and similarly to the power to take permanent national measures granted to NCAs), whether the MISP proposal to transfer CASP supervision to ESMA is adopted or not.”

“ESMA proposes to introduce requirements for CASPs providing execution, RTO and exchange services to provide full cost information to investors.”

“ESMA invites the Commission to clarify in MiCA that staking services provided by authorised CASPs should be subject to targeted conduct, disclosure and safeguarding requirements, without automatically treating staking as equivalent to lending or investment management.”

“For CASP-provided staking, MiCA should require enhanced staking disclosures, including on rewards, lock-up and unbonding periods, slashing risk, validator selection, fees, operational dependencies and insolvency treatment.”

“It would distinguish between: (i) collateralised borrowing; (ii) margin or leveraged borrowing linked to trading; (iii) borrowing through DeFi protocols accessed via a CASP; and (iv) more complex arrangements involving rehypothecation or recursive leverage.”

“It would distinguish between: (i) collateralised borrowing; (ii) margin or leveraged borrowing linked to trading; (iii) borrowing through DeFi protocols accessed via a CASP; and (iv) more complex arrangements involving rehypothecation or recursive leverage.”

“Over time, as demand for DLT-native issuances develops, an optional EU-level 28th regime could establish a consistent basis for issuing, transferring and settling tokenised securities across Member States without requiring immediate harmonisation of every relevant area of national law.”

“Persistent uncertainty concerning issuance, legal title, custody, settlement finality and cross-border enforceability risks creating separate national or technological silos.”

“A coherent legal framework should therefore support interoperability between DLT systems and traditional infrastructures, promote asset portability and liquidity, and prevent tokenisation from reproducing existing market fragmentation in a new form.”