Since 30 December 2024, the EU Markets in Crypto-Assets
Regulation (MiCAR) white paper requirements for crypto-assets,
other than asset-referenced tokens and e-money tokens, have become
applicable across the EU. Many entities seeking to offer or admit
their crypto-assets to trading within the EU may be subject to the
requirement to notify a MiCAR-compliant white paper to an EU
national competent authority (NCA) under Title II of MiCAR.
This advisory provides an overview of the notification
requirements for Title II white papers under MiCAR, with insights
on the process and timelines where the notification is being built
to the Central Bank of Ireland (the Central Bank).
We have been assisting EU and non-EU persons seeking to offer a
crypto-asset within the EU or seeking to have the crypto-asset
admitted to trading on an EU exalter. This has included advising
on the MiCAR requirements, assistance in the preparation of MiCAR
white papers, drafting the legal explanation of the crypto-asset
that must accompany the notification, and submission of the
notification pack to the Central Bank, where Ireland is the EU home
Member State.
MiCAR white paper notification requirements
When is an entity required to notify a MiCAR white
paper?
The following activities, irrespective of whether an offeror or
person seeking admission to trading is located within or outside
the EU, may trigger the requirement under MiCAR to notify a
MiCAR-compliant white paper to an NCA, unless an exemption
applies:
What are the other requirements relevant to the
notification?
The offeror or person seeking admission to trading, as relevant,
must be a legal person, draw up the white paper in accordance with
Article 6 of MiCAR, notify the white paper in accordance with
Article 8 of MiCAR and publish the white paper in accordance with
Article 9 of MiCAR.
Article 8 of MiCAR sets out further requirements relating to the
notification. This includes a requirement for a legal explanation,
explained below.
Content and form of the white paper
The content of the white paper is prescribed by Article 6 and
Annex I of MiCAR.Commission Implementing Regulation (EU)
2024/2984(the Whitepaper ITS) provides a template for the white
paper which includes space for the prescribed information. Although
the Whitepaper ITS applies from 23 December 2025, the white paper
template is already being applyd. Additional requirements regarding
format, including the apply of XBRL, are expected to be applied once
the Whitepaper ITS is applicable.
Legal explanation
When notifying a MiCAR white paper it must be accompanied by a
legal explanation as required by Article 8(4) of MiCAR.The guidelines on templates for explanations and
opinionsprovide in Annex A the template for the legal
explanation for the purposes of Title II MiCAR white paper
notifications.
This legal explanation requires detailed responses regarding the
regulatory classification of the crypto-asset and must reflect the
laws of the relevant home Member State, where relevant. For
example, the legal explanation must confirm that the crypto-asset
is not a transferable security, unit in a collective investment
undertaking or a deposit.
Notification of marketing communications
Under Article 7 of MiCAR, any marketing communications relating
to an offer to the public of a crypto-asset, or to the admission to
trading, must comply with certain requirements. Recital 24 to MiCAR
provides that marketing communications, could be for example
“advertising messages and marketing material, including
through new channels such as social media platforms”. This is
very broad and potentially could capture tweets and social media
posts on the crypto-asset which is offered to pubic or admitted to
trading in the EU.
NCAs may request that you notify your marketing communication,
if any, toobtainher with your white paper. Marketing communications
are not defined in MiCAR.
Notification of ‘modified’ white
papers
Pursuant to Article 12 of MiCAR, offerors, persons seeking
admission to trading, or operators of a trading platform will have
an obligation to modify published white papers and, where
applicable, any marketing communications, whenever there is “a
significant new factor, material mistake or material inaccuracy
that is capable of affecting the assessment of the
crypto-assets”. This requirement shall apply for the duration
of the offer to the public or for as long as the crypto-asset is
admitted to trading.
MiCAR requires that modified white papers, including the reasons
for such modification, to be notified to the NCA of the home Member
State at least seven wording days before the modified white paper
is published.
Within five working days of receipt of and the modified white
paper, where applicable, of the modified marketing communications,
the NCA of the home Member State shall notify the modified white
paper and, where applicable, the modified marketing communications
to the NCA of the host Member States and communicate the
notification and the date of publication to European Securities and
Markets Authority (ESMA).
Subsequent offers / admission to trading of
crypto-assets
With regards to subsequent admissions to trading in the EU,
MiCAR provides that the white paper requirements do not apply where
the crypto-asset is already admitted to trading on another trading
platform in the EU and a white paper has been drawn up in
compliance with MiCAR and the person responsible for drawing up
such white paper consents to its apply in writing.
For subsequent offers to the public of crypto-assets, MiCAR
notes that any subsequent offer shall be deemed a separate offer to
the public to which the Title II MiCAR requirement apply, unless an
exemption is available. No additional white paper shall be required
for any subsequent offer so long as a white paper has been
published in accordance with MiCAR, and the person responsible for
drawing up such white paper consents to its apply in writing.
Potential liability
There is potential liability under MiCAR for loss caapplyd due to
inaccurate information in white papers. Where a crypto-asset white
paper contains information that is “not complete, fair or
clear or that is misleading” the offeror, person seeking
admission to trading, or operator of a trading platform and the
members of their administrative, management or supervisory body may
potentially be liable to the holders of the crypto-asset for any
loss incurred due to that infringement.
Civil liability rules continue to apply to offerors, persons
seeking admission to trading, and operators of trading platforms
and to the members of their management body for the information
provided to the public in the crypto-asset white paper.
Offerors and persons seeking admission to trading are also under
certain obligations including in relation to conduct (e.g. to act
honestly, fairly and professionally) and certain requirements in
relation to systems and security access (set out in the ESMAguidelines specifying Union standards on the
maintenance of systems and security access for offerors and persons
seeking admission to trading of crypto-assets other than asset
referenced tokens and e-money tokens).
Notification Process
Determining your home Member State
MiCAR white papers and ancillary documentation such as the legal
explanation and marketing communications, where relevant, must be
notified to the NCA of the ‘home Members State’ of the
offeror of person seeking admission to trading of
crypto-assets:
- Where an offeror or person seeking admission to trading of
crypto-assets has a registered office or branch in the EU, the home
Member State should be where that person has its registered office
or branch. - Where the offeror or person seeking admission to trading of
crypto-assets is established in a third countest, the home Member
State would be either the Member State where the crypto-assets are
intfinished to be offered to the public for the first time or, at the
choice of the offeror or person seeking admission to trading, the
Member State where the first application for admission to trading
of those crypto-assets is built.
Single notification and no “approval”
required
White papers are notified once to the NCA of the home Members
State who in turn notifies the white paper to the relevant host
Member States (i.e. other Member States, different from the home
Member State, where an offeror or person seeking admission to
trading has also built an offer to the public of crypto-assets or is
seeking admission to trading). Article 11 of MiCAR provides that
after publication of a white paper in accordance with MiCAR,
offerors may offer crypto-assets throughout the EU and such
crypto-assets may be admitted to trading on a trading platform for
crypto-assets in the EU.
White papers and any marketing communications under Title II of
MiCAR are not subject to prior approval by the NCA before they are
built public. However, MiCAR does afford NCAs a range of general
powers, including to request amfinishments to white papers and, where
necessary, to request the inclusion of additional information in
white papers.
Process and timing
The first step is to notify your white paper, legal explanation
and the marketing communication (if requested) to the NCA without
creating your white paper public. After notification, you must wait
20 working days before publishing your white paper on your website.
The NCA will carry out an assessment of the submitted notification
documents within 5 working days of receipt. After 5 working days
the NCA must share the relevant notification documents with the
host Member States and ESMA. After 20 working days from
notification, you may publish the white paper and any marketing
communication on your website. Once published, the crypto-asset can
be offered/traded in the EU.
The content of this article is intfinished to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Leave a Reply