1. Preventing unintentional Offers to the Public on the Secondary Market
Article 3 (1) point 12 MiCAR defines an offer to the public as any communication that contains sufficient information about the terms of the offer and the crypto-assets themselves, providing prospective holders with sufficient basis for their purchase decision. In such cases, the obligations under Title II (requirement for a crypto-asset white paper pursuant to Article 4 MiCAR) apply, or – depending on the type of crypto-asset – the further requirements for issuers under Title III or Title IV MiCAR (authorisation or licensing).
According to Article 143 (1) MiCAR, Title II does not apply to offers to the public that ended before 30 December 2024. As a result, many crypto-assets currently traded on the secondary markets do not have crypto-asset white papers. Based on the FMA’s established practice, presenting price data per se does not constitute a (renewed) offer to the public. See the European Securities and Markets Authority (ESMA) Q&As 981. Since crypto-assets service providers (CASPs) often provide extensive information for supervisory reasons, more detailed information is frequently publicly accessible.
The decisive factor for identifying an offer to the public of a crypto-asset is whether the communication merely describes the service – which is particularly relevant for services pursuant to Article 3(1) 1 point 16 lits. c-e and g-i – or whether in addition a specific crypto-asset is highlighted in a promotional manner. Where the latter occurs in a way that indicates a specific, targeted intention to sell the promoted crypto-assets, the legal consequences under Titles II-IV MiCAR generally apply. See the ESMA Q&As 2404 in this regard.
2. Conduct Obligations for CASPs when describing Crypto-Assets outside of an Offer to the Public
According to Article 66 MiCAR, CASPs are required to provide clients with basic information about the services offered and the relevant crypto-assets. In practice, this is typically done by means of brief descriptions of the crypto-assets.
Depending on the wording, such descriptions may create an impression of an intention to sell regarding specific crypto-assets. In the specific circumstances of the case in hand, this might potentially meet the criteria for an offer to the public. Therefore, CASPs should observe the following:
- Use neutral language: Comparative and evaluative expressions should be avoided (e.g., use of comparatives or superlatives)
Negative example: “X-Network is a faster version of Bitcoin.”
- Create linguistic distance from the project and its claims: avoid reproducing claims or promises of value/performance in a direct or unqualified manner
- Use indirect speech
- Use qualifying verbs (e.g., “claims to”, “aims to”, “intends to”)
Negative example: “X-Network is a network that enables the automation of decentralised financial products.”
Alternative: “X-Network claims to be developing a network, designed to automate decentralized financial products.”
- Provide information on the quality and scope of the due diligence review conducted by the CASP:
- Include a disclaimer stating that the CASP performs due diligence as a part of the listing process, but due to a lack of a white paper (under MiCAR) and due to limited insight into the project, no detailed or comprehensive assessment has been conducted regarding the project’s viability or the accuracy of publicly available information
- Explicitly deny endorsement or approval of the project by the CASP:
- Include a disclaimer stating that the CASP (if applicable) is not affiliated with the project and does not endorse or support its public statements or promises.
The specific form of the above disclaimers is at the CASP’s discretion. However, such disclaimers should be placed in close proximity to the specific description of the crypto-asset, and not merely included in general terms and conditions or broad disclaimers.
3. Key Considerations regarding “Unauthorised Stablecoins”
On 8 October 2026, ESMA published a new Opinion on services related to “unauthorised stablecoins”. The Opinion requires CASPs to discontinue the provision of services related to “unauthorised stablecoins”. A maximum period of three months from the publication date of the Opinion has been stipulated for the remediation of remaining existing positions. Further information is available on the FMA and ESMA websites.