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These Q&As go beyond mere clarification. They show how ESMA and national competent authorities ("NCAs") intend to apply MiCA in practice, shaping the authorisation, supervision, and day-to-day compliance expectations for Crypto-Asset Service Providers ("CASPs") and crypto-asset offerors.
Q&A 2653 – Distinguishing execution, RTO and exchange services
Q&A 2653 helps CASPs determine whether their activities amount to:
- Execution of orders on behalf of clients – the CASP acts as an agent, concluding contracts for clients without using its own capital. This includes cases where the CASP executes orders directly with another counterparty or through a trading platform.
- Reception and transmission of orders ("RTO") – the CASP forwards client orders to another entity for execution, acting purely as an intermediary, without itself trading or using proprietary capital.
- Exchange services – the CASP acts as counterparty using its own capital. However, ESMA emphasises that acting as counterparty does not automatically exclude a CASP from being deemed to provide execution services.
ESMA clarifies that the determination of a CASP's service classification depends on its operational reality, not its contractual labelling. NCAs should not rely on how a CASP labels its activity in agreements or marketing materials. Instead, they must examine:
- how client orders are actually handled;
- whether the CASP uses its own balance sheet;
- how orders flow through its systems; and
- how client interactions reflect agency or principal conduct.
In cases of uncertainty, particularly with retail clients, ESMA advises a presumption that the CASP acts as an agent, triggering execution-service duties.
For CASPs, this interpretation means MiCA authorisation and ongoing compliance will depend on evidence of actual business conduct, not internal definitions. CASPs should therefore:
- review order-handling frameworks and system architecture;
- ensure that client disclosures and contracts align with how the service operates in practice; and
- document processes that demonstrate compliance with best execution, transparency and fair treatment requirements.
CASPs offering exchange services must also comply with Article 77 of MiCA by publishing clear, non-discriminatory pricing policies, defining who they transact with, and executing client orders at displayed prices.
Q&A 2654 – White paper responsibilities
This Q&A addresses an increasingly practical question: "Who must ensure that a MiCA-compliant white paper exists for tokens admitted to trading before 30 December 2024?"
Under Article 143(2) of MiCA, the general Title II obligations are replaced by transitional rules. Only two requirements apply to crypto-assets (other than ARTs and EMTs) that were already admitted to trading before MiCA's full application:
- Articles 7 and 9 apply to marketing communications published after 30 December 2024; and
- Operators of trading platforms must ensure, by 31 December 2027, that a crypto-asset white paper, "in the cases required by this Regulation," is drawn up, notified, published and updated under Articles 6, 8, 9 and 12.
Meanwhile, Article 66(3) of MiCA imposes ongoing duties on certain CASPs, specifically those operating a trading platform, exchanging crypto-assets for funds or other crypto-assets, providing advice on crypto-assets, or offering portfolio management of crypto-assets. These CASPs must warn clients of crypto-asset risks and provide hyperlinks to any available white papers. If none exist, they have no duty to create one.
ESMA interprets Article 143(2)(b) as creating a deferred obligation. Platform operators do not need to ensure the existence of a white paper immediately, but by the end of 2027 they must ensure that a MiCA-compliant document exists for any token still traded on their venue.
Other CASPs referenced in Article 66(3) are only required to publish hyperlinks to existing registered white papers and, where no white paper exists, they bear no responsibility for producing one.
From a practical standpoint, this may create a regulatory imbalance after 2027. Trading platforms will bear a clear obligation to verify the existence of notified, MiCA-compliant white papers for all listed tokens, while other CASPs may continue providing services for unnotified crypto-assets (other than EMTs or ARTs) outside the EU's disclosure framework. The result is a two-tiered transparency regime that depends less on the nature of the crypto-asset than on who intermediates it – a distinction that sits uneasily with MiCA's harmonisation objective. Even so, prudential and reputational pressures are likely to push most CASPs towards voluntary alignment, limiting exposure to unnotified crypto-assets.
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.
