Market abuse in crypto-assets
Market abuse is also prohibited in relation to crypto-assets under the MiCAR (Markets in Crypto-Assets Regulation Regulation (EU) 2023/1114) regime.
MiCAR was published in the Official Journal of the European Union on 9 June 2023 and entered into force on 29 June 2023. A large proportion of its provisions only become effective from 30 December 2024.
They include the rules in Title VI of MiCAR on combatting market abuse in crypto-asset execution venues.
The provisions under Title VI of MiCAR regarding the prevention and prohibition of market abuse involving crypto-assets (Articles 86 to 92) are modelled on the provisions in this regard contained in the Market Abuse Regulation (MAR).
Article 86 MiCAR defines the scope of the rules on market abuse, Article 87 MiCAR defines the term inside information, Article 88 MiCAR defines the public disclosure obligations of inside information, Article 89 MiCAR the prohibition of insider dealing, Article 90 MiCAR the prohibition of unlawful disclosure of inside information, Article 91 MiCAR the prohibition of market manipulation, and finally Article 92 MiCAR contains rules on the prevention and detection of market abuse.
Relevant national legislation – penal provisions
Austria’s national legislation transposing MiCAR, the MiCAR Enforcement Act (MiCA-VVG; MiCA-Verordnung-Vollzugsgesetz), was passed by the National Council (Nationalrat) on 03 July 2024 and entered into force on 20 July 2024. This law designated the FMA as the competent supervisory authority in Austria.
Under the MiCA-VVG, market abuse is only pursued by way of an administrative penal proceeding.
The administrative penal provisions for transactions in relation to insider trading and market manipulation against natural persons as well as legal entities can be found in Articles 13 et seq. MiCA-VVG.
Under Article 13 MiCA-VVG both dealings in relation to insider trading as well in relation to market manipulation are pursuant as administrative offences. A breach performed by a natural person may be punished by the Financial Market Authority by means of a fine of up to EUR 5 million or up to triple the amount of the gain arising from the breach including any loss avoided, where this amount is able to be determined. In the case of this offence being committed deliberately, the attempt to do so is also punishable.
Legal entities may be fined up to EUR 15 million under Article 15 MiCA-VVG or up to 15 percent of annual turnover or up to triple the amount of the gain arising from the breach including any loss avoided, where this amount is able to be determined.