Opinion on the provision of crypto asset services in relation to non-MiCA-compliant asset-referenced tokens and e-money tokens

8 October 2026
ESMA75-113276571-1742
ESMA - 201-203 rue de Bercy - CS 80910 - 75589 Paris Cedex 12 - France - www.esma.europa.eu 1 Opinion On the provision of crypto asset services in relation to non￾MiCA-compliant asset-referenced tokens and e-money tokens Introduction and legal basis

1. ESMA’s competence to deliver an opinion to national competent authorities (NCAs) is
   based on Article 29(1)(a) of the ESMA Regulation (Regulation (EC) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority)).
2. Pursuant to Article 29(1)(a) of the ESMA Regulation, ESMA shall provide opinions to
   NCAs for the purpose of building a common Union supervisory culture and consistent supervisory practices, as well as ensuring uniform procedures and consistent approaches throughout the Union. Background
3. MiCA establishes a set of comprehensive obligations applicable to natural and legal
   persons engaged in the issuance, offer to the public, and seeking admission to trading of crypto-assets under Titles II-IV, and lays down obligations applicable to CASPs under Title V. They are intended to ensure investor protection, market integrity and financial stability and to ensure that consumers are better informed of the associated risks.
4. Notwithstanding the clarifications provided in European Commission Q&A 2404 and
   ESMA’s Public Statement on the provision of certain crypto-asset services in relation to non-MiCA compliant ARTs and EMTs, ESMA considers that further guidance is required to address additional aspects of the provision of crypto-asset services in relation to such tokens. This Opinion therefore seeks to complement the existing guidance on the obligations applicable to CASPs and to promote a more consistent application of the MiCA framework across the Union.
5. The entry into application of MiCA constitutes a fundamental development in the
   establishment of a single rulebook for the regulation and supervision of issuance, offer to the public and admission to trading and provision of services in relation to crypto￾assets. In order to deliver on its objectives, it is crucial that the framework is implemented and supervised in an effective and harmonised manner throughout the Union.

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6. European Commission Q&A 2404 and the accompanying ESMA public statement
establish the circumstances where the provision of certain crypto-asset services may constitute an offer to the public, a seeking of admission to trading or placing of an ART or EMT.
7. This Opinion does not change the position expressed above, nor does it imply that the
provision of every crypto-asset service in relation to an ART or EMT necessarily constitutes an offer to the public or admission to trading within the meaning of Articles 16(1) or 48(1) of MiCA. Rather, it sets out ESMA’s broader supervisory expectations regarding whether the continued provision of such services is compatible with the obligations applicable to CASPs under Title V of MiCA and with the effective achievement of the objectives pursued by Titles III and IV.
8. Due to the crucial role played by CASPs in the functioning of the crypto-asset
ecosystem, and in light of the potential impact on investor protection, market integrity and financial stability, ESMA considers it necessary to provide further clarifications regarding ESMA’s expectations for CASPs providing crypto-asset services in relation to ARTs or EMTs in respect of which the conditions for a lawful offer to the public or admission to trading in the Union under Title III or Title IV of MiCA are not met. Specifically, whether the continued provision of such services is compatible with the obligations applicable to CASPs and the regulatory objectives pursued by MiCA, regardless of whether the services constitute an offer to the public or admission to trading or not. 1
9. This Opinion is addressed primarily to national competent authorities (NCAs) to
promote supervisory convergence and support NCAs’ assessment of specific business set ups.
10. This Opinion does not prejudice any future opinions or other convergence tools issued
by ESMA and is without prejudice to the competences of the EBA and relevant competent authorities in relation to the authorisation and supervision of issuers of ARTs and EMTs under Titles III and IV of MiCA. Opinion
11. Having regard to the requirements applicable under Titles III and IV of MiCA to the offer
to the public and admission to trading of ARTs and EMTs in the Union, and having regard to the obligations of CASPs under Title V of MiCA, in particular the obligation under Article 66(1) to act honestly, fairly and professionally in the best interests of clients and prospective clients, and aligned with MiCA objectives of investor protection and market integrity. 1 “non-MiCA-compliant ARTs or EMTs” means ARTs or EMTs in respect of which the conditions for a lawful offer to the public or admission to trading in the EU under Title III or Title IV of MiCA, including any applicable exemptions or transitional arrangements, are not met.

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12. ESMA considers that CASPs should not provide crypto-asset services in relation
to ARTs or EMTs that are not compliant with the applicable requirements under MiCA (non-MiCA compliant ARTs or EMTs).
13. Within this context, the provision of a MiCA service in relation to a non-MiCA compliant
ART or EMT is considered to expose clients to risks that do not arise from the provision of the service itself, but rather to risks that are inherent to the non-compliant status of the ART or EMT due to the absence of the issuer-level safeguards required by MiCA. In ESMA’s view, these risks cannot be adequately identified, managed or mitigated through the measures available to the CASP and should give rise to the presumption that the provision of all MiCA services is incompatible with the obligations set out in
Article 66(1), since the CASP would be considered to knowingly facilitate client
exposure to risks created by the absence of Title III/IV safeguards.
14. This conclusion does not depend on whether each individual crypto-asset
service constitutes, in itself, an offer to the public or admission to trading within the meaning of Articles 16(1) or 48(1) of MiCA. Rather, it reflects ESMA’s view that authorised CASPs should not, through the provision of services under Title V, maintain or facilitate the availability in the Union of ARTs or EMTs that have not been offered to the public or admitted to trading in accordance with the applicable requirements of Titles III or IV.
15. Furthermore, permitting CASPs to maintain or facilitate the availability of non-MiCA￾compliant ARTs or EMTs to clients in the Union would run counter to
the objectives of MiCA and undermine its effectiveness. The requirements imposed on issuers under Titles III and IV would be materially undermined if non-MiCA compliant ARTs or EMTs could remain accessible, usable or liquid in the Union through services provided by authorised CASPs.
16. First, it would jeopardise the effectiveness of Titles II, III, IV of MiCA by
enabling systematic circumvention of the regulatory requirements applicable to ARTs and EMTs. As a result, assets belonging to the same regulatory category would, in practice, be subject to different regulatory standards depending solely on whether they were issued and made available in the Union in compliance with MiCA, contrary to the Regulation's intention of establishing a harmonised framework for these asset classes.
17. Second, it would create an uneven playing field between compliant and non-compliant
issuers, thereby distorting competition. While MiCA-compliant issuers are required to comply with extensive obligations, including applicable redemption rights, reserve-of￾assets or safeguarding requirements, governance obligations, disclosure requirements and ongoing supervisory oversight, non-compliant ARTs or EMTs could remain available on the market without bearing equivalent regulatory costs or obligations.
18. Third, it would undermine investor confidence in the market by depriving investors of
the consistent level of protection, transparency and supervisory oversight that MiCA is designed to provide. Where assets belonging to the same regulatory category are subject to different legal requirements and enforcement standards, investors

4 cannot reasonably expect a uniform level of protection, thereby weakening confidence in the integrity and reliability of the Union's crypto-asset market.
19. ESMA considers that reliance on warnings, disclosures or client acknowledgements
would not sufficiently address the concerns identified in this Opinion. In particular, warnings do not prevent the continued availability and use of crypto-assets that fail to meet the conditions established under Titles III and IV, nor do they adequately mitigate the risk that those requirements could be undermined in practice through the provision of crypto-asset services. Additional disclosures would be insufficient to mitigate this risk, as they are unlikely to fully communicate the material significance of the safeguards that are not in place. The protections established under MiCA do not address a single risk but operate collectively to mitigate a broad range of risks relating to the issuance and operation of ARTs and EMTs. Consequently, expecting clients to assess the implications of the absence of those safeguards, or to rely on a CASP's assessment of the resulting risks communicated through disclosures, is highly unlikely to enable them to accurately evaluate the risks involved. Furthermore, any assessment undertaken by a CASP would necessarily involve complex legal, regulatory and operational judgments and may therefore differ in scope, methodology and conclusions. As a result, disclosures are unlikely to constitute an effective substitute for the safeguards themselves or to ensure that investors are able to fully appreciate and accurately assess the additional risks arising from their absence. In view of the aforesaid, investor protection, market integrity and the effectiveness of the MiCA framework can be achieved only by refraining from the provision of services that would facilitate access to, or continued use of, non-compliant ARTs and EMTs.
20. In addition, the provision of crypto-asset services in relation to non-MiCA-compliant
ARTs or EMTs hinders NCAs’ ability to proactively ensure full compliance with MiCA, in particular in enforcing the quality of information contained in a white paper, the marketing communications that are used, and to monitor that trading is not detrimental to the interests of the holders of crypto-assets, in particular retail holders.
21. In practice, ESMA expects that NCAs should consider whether a CASP’s services,
individually or in combination, allow EU clients to acquire, trade, exchange, subscribe for, increase their exposure to, or otherwise access or maintain, non-MiCA compliant ARTs or EMTs. This should include all CASP services i.e.: a CASP operates a trading platform, provides exchange services, executes orders, receives and transmits orders, places crypto-assets, provides advice, transfer services, custody, and portfolio management.
22. Accordingly, CASPs should not maintain, introduce or facilitate access to non￾MiCA compliant ARTs or EMTs for EU clients through their services. CASPs should
implement appropriate technical, contractual and organisational controls to prevent the availability of such ARTs or EMTs in the Union, including controls preventing EU clients from acquiring or increasing positions in those ARTs or EMTs.

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23. This does not prevent NCAs from allowing CASPs who do not yet comply with this
Opinion, to provide strictly limited residual services where they are necessary to ensure an orderly wind-down and to avoid client detriment.
24. Such residual services should be limited to the liquidation, conversion,
withdrawal, transfer or safekeeping of existing holdings, and should not facilitate new acquisitions, promotion, trading, active distribution or continued market availability of the relevant ARTs or EMTs. Any such residual services should be time-limited, clearly communicated to clients and subject to close supervisory scrutiny. Conclusion
25. ESMA expects that, considering the guidance provided in this Opinion, NCAs assess
whether any authorised CASP operating within their jurisdiction is providing services in relation to non-MiCA compliant ARTs and EMTs and/or is providing crypto-asset services that maintain or facilitate the availability of such tokens to clients in the Union.
26. This supervisory expectation applies to all crypto-asset services, individually or in
combination, subject only to strictly limited and time-bound arrangements necessary to protect existing clients and ensure an orderly wind-down. NCAs should ensure that CASPs implement appropriate controls preventing the continued or systematic availability of non-MiCA-compliant ARTs or EMTs through their services.
27. Where NCAs identify remaining legacy exposures, they should require remediation as
soon as possible and no later than three (3) months following the date of publication of this Opinion. Any continuation of services should be strictly limited to sell-only, conversion, transfer or withdrawal functionalities necessary to avoid client detriment, and should be time-limited, risk-based and closely supervised.
28. ESMA shall, in cooperation with the respective NCAs, regularly monitor the timely
application of this Opinion.