1 Why an apparently modest Q&A-batch rewires entire operating models
Compliance officers who skim regulatory updates only for headline-worthy acronyms may have overlooked three slim yet densely reasoned answers that the European Securities and Markets Authority published in mid-June 2025; taken together, they redraw the perimeter of lawful custody, trading-venue architecture and client-rights facilitation under Regulation (EU) 2023/1114 (MiCA).
2 Custody segregation: "separate address" now means really separate
ESMA confirms that a crypto-asset service provider (CASP) holding assets for clients must use wallet addresses that are entirely distinct from every address to which proprietary coins are sent, and that intermingling client assets with those of sister companies—however commercially convenient—introduces conflicts so severe that they may breach Articles 72 and 75 MiCA unless exhaustively mitigated. Beyond physical segregation, CASPs must publish granular conflict-policies encompassing intra-group information asymmetries and withdrawal priority-risks; boiler-plate disclaimers will no longer suffice.
3 Client-rights derogations: generic terms of service struck down
Another answer dismantles a widespread custody clause: standardised, click-wrap "terms" cannot count as a "valid agreement" that overrides the default duty to pass through forks, airdrops or governance rights to the beneficial owner. ESMA insists on prior, explicit and signed consent—ideally captured through a separate affirmative action. Providers hoping to insulate themselves via broad "we may be unable to support network changes" language must redesign onboarding flows to obtain dagger-precise acknowledgements, otherwise risk regulatory censure and civil liability.
Practical takeaway. Insert a pop-up signature module or wet-ink annex targeting Article 75(4) derogations, and archive consents in an immutable audit trail; reliance on buried clauses is no longer defensible.
4 Shared order books with non-EU exchanges: unequivocally forbidden
Liquidity-hungry platforms have experimented with "global pool" infrastructures, merging EU order flow with that of offshore affiliates. ESMA now states that each firm operating a unified order book is itself providing the regulated service of a trading platform, thus every participant must be authorised under Article 63 MiCA; if even one co-operator lacks authorisation, the entire arrangement is illegal.
Business model impact. Cross-border liquidity hubs must pivot to "matched principal" routing or establish legally separate pools inside the EEA; simple API relays that feed orders into an offshore book become regulatory landmines.
5 Action matrix for CASPs, custodians and venue operators
|
Immediate (30 days) |
Transitional (Q4 2025) |
Strategic (2026-onwards) |
|
" Map all wallet addresses, tag proprietary vs. client vs. group-entity assets. |
" Roll out explicit consent modules for fork/airdrop handling; test e-signature validity under applicable contract law. |
" Redesign liquidity strategies: consider inter-dealer bilateral streams or EU-incorporated SPVs instead of shared books. |
|
" Draft conflict-of-interest addendum aligned with ESMA RTS on Article 72. |
" Re-paper intra-group custody mandates; introduce independent withdrawal-queue governance. |
" Implement on-chain proof-of-reserve that distinguishes every legal owner class to pre-empt transparency criticisms. |
Sources:
- ESMA_QA_2290
- ESMA_QA_2578
- ESMA_QA_2579
Key findings & core statements
- No group commingling: client coins must inhabit addresses untainted by sister-company holdings; conflicts must be documented and mitigated.
- Consent must be explicit: a signed, specific agreement—not generic T&Cs—is required to limit clients' entitlement to assets spawned by forks or protocol changes.
- Shared EU/offshore order books banned: every entity touching a unified book needs MiCA authorisation, else the structure breaches MiCAR.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
