Status Quo
On 10.06.2025, the European Banking Authority (EBA) in consultation with the European Securities and Markets Authority (ESMA), published an No Action letter in the form of an opinion [Link] (EBA/Op/2025/08) on the “Interplay of the Markets in Crypto-Assets Regulation (MiCAR) and the 2nd Payment Services Directive (PSD2)[1] in relation to crypto-asset service providers (CASPs) that transact E-money tokens (EMTs)”, (“the letter”) based on a letter by the European Commission (EC) to EBA and ESMA (“the ESAs”).
The Austrian Financial Market Authority (FMA) declares its support for European convergence and will enforce the recommendations in the letter in its capacity as the national competent authority in relation to the legal acts mentioned in the letter.
This letter should make the market aware of this development as well as the resulting requirements. In addition, the FMA provides those undertakings that are affected insights into the subsequent process.
Background
The European Commission and the ESAs have identified overlaps between the crypto-asset services provided by CASPs within the scope of MiCAR and payment services regulated within the scope of PSD2 (especially in the case of specific services related to EMTs).
Under Article 48 (2) MiCAR, EMTs are qualified as electronic money as defined in Article 2 point 2 of the 2nd Electronic Money Directive (EMD2), which results in EMTS constituting “funds” under Article 4 (25) PSD2. EMTs thereby enjoy a “dual nature” simultaneously being crypto-assets under MiCAR and electronic money / or funds as defined in PSD2.
Certain activities conducted by CASPs regarding EMTs therefore require authorisations under both MiCAR and PSD2 (as a payment institution or an equivalent authorisation, e.g. as a CRR credit institution, e-money institution) (“dual authorisation”).
To ensure that the affected undertakings have sufficient time to meet the necessary legal requirements that are necessary in this instance, the EBA letter has granted them a transition period until 02.03.2026.
As recommended in the EBA letter, concessions will also be made towards the affected CASPs, in that the addressing of certain requirements set out in the PSD2 will not be addressed by the national competent authorities in a prioritised manner after the end of the transition period mentioned above.
The exceptions from certain requirements listed in the letter shall however generally only apply in the case that the same legal person is granted an authorisation as a CASP and an authorisation as a payment institution (or the corresponding equivalent).
EBA, as well as the FMA, is using these measures for resolving current issues in relation to the interplay of MiCAR and PSD2, and by doing so to ensure the necessary legal clarity in the financial market.
Scope of application
CASP service providers will require both an authorisation under MiCAR as well as under PSD2 (as a payment institution or an equivalent authorisation, e.g. as a CRR credit institution, e-money institution) (“double authorisation”) for the following activities in relation to EMTs:
- for transfer services as defined in Article 3 (1) point 26 MiCAR in relation to EMTs offered as a service for clients and are executed on the client’s account.
- In this context, reference is made to ESMA’s broad interpretation of transfer services in the context of other services, especially the custody and administration of crypto-assets (ESMA-QA-2071).
- for custody and administration as defined in Article 3 (1) point 17 MiCAR in relation to EMTs.
- For providing custodial wallets, provided the wallets permit the sending and receiving of EMT transfers to and from third parties, as in this case wallets are considered as payment accounts as defined in Article 4 point 12 PSD2.
Despite these aforementioned cases, whether a “dual authorisation” is required always depends on a CASP’s specific business model. Accordingly, every business model must be individually examined, and is ultimately subject to a case-by-case review.
Where a dual authorisation is necessary, the letter also contains rules about the PSD2 provisions to be considered in such cases, as well as the cases that should not be given “prioritised treatment”.
Finally, the EBA letter also contains explicit examples of the cases in which dual authorisation should be refrained from:
- in the case of purely bilateral exchange of EMTs for other crypto-assets or funds as defined in Article 3 (1) point 19 et seq. MiCAR, provided that no other relevant circumstantial elements prevail.
- in cases where no transactions or transfers of crypto-assets occur, as may be observed in isolation or may be the case for providing advice on crypto-assets and providing portfolio management of crypto-assets (Article 3 (1) point 24 et seq. MiCAR).
- in placing services (Article 3 (1) point 22 MiCAR), the execution of orders Article 3 (1) point 21 MiCAR) and the reception and transmission of orders for crypto-assets on behalf of clients (Article 3 (1) point 23 MiCAR), as in such cases the relevant provisions governing exclusions under Article 3 PSD2 are to be observed.
- in the case of services where CASPs act as trading intermediaries.
The FMA will in this case act fully in accordance with the standards set out in the EBA letter to ensure harmonised conditions for competition in the European financial market.
In the event that EBA’s interpretations change, it is not possible to exclude further developments in the future regarding national practice on interpretation.
Process
Due to the short timeframe and the fact that large parts of the market are currently engaged in an authorisation process under MiCAR or have only recently been authorised, the FMA urges all affected undertakings to contact the FMA ([email protected] with the competent MiCAR-SPOC in cc: as applicable) in an accordingly well-prepared and timely manner in this regard.
It is imperative that the agreement regarding requirements and necessary documentation should take place promptly prior to the submission of an authorisation application, in other to avoid documentation that has already been received being submitted multiple times, to permit efficient processing.
It should be noted at this juncture that applicants who are also striving for an authorisation as an electronic money institution within the same group of undertakings in addition to the MiCAR authorisation, are also required to observe the relevant deadlines as well as the requirements stated in the letter.
[1] The Payment Services Act 2018 (ZaDiG 2018; Zahlungsdienstegesetz 2018 (published in Federal Legal Gazette I No. 17/2018) transposes PSD2 in Austria.