MiCAR and whitepaper obligations – what the transitional regulations mean

The Markets in Crypto-Assets Regulation (MiCAR) has been in force for just over a year.

Among other things, MiCAR obliges issuers and providers of crypto assets to prepare, submit and publish a white paper for every public offering and admission to trading.

What this means in concrete terms and to what extent transitional regulations apply here is apparently interpreted differently on the market.

We would like to provide clarity below.

Whitepaper obligation applies to crypto securities offerings from December 30, 2024

MiCAR has been in effect since December 30, 2024, and as of this date, all new crypto-asset offerings and new trading admissions must be MiCAR-compliant and have a whitepaper. The whitepaper requirement does not apply to offerings that were already terminated before December 30, 2024.

For business models and products that already existed on this date but had not yet been completed, transitional regulations and grandfathering apply in some cases.

Whitepaper obligation applies to all crypto assets

MiCAR, and therefore also the whitepaper obligation, applies to all crypto assets, i.e. the digital representation of a value or right that can be transferred and stored electronically using distributed ledger technology or similar technology. Specifically, these are asset-backed tokens, e-money tokens and other crypto assets such as utility tokens or meme coins.

However, non-fungible tokens (NFTs) and tokenized financial instruments such as security tokens and tokenized deposits are not subject to MiCAR regulation.

MiCAR also covers the services associated with crypto assets, such as the operation of trading platforms, the custody of digital assets or the execution of client orders.

No application for products and services before December 30, 2024

In general, products and services that were exclusively in use or provided before December 30, 2024 are not covered by MiCAR. In this respect, there is no retroactive effect of legal consequences.

Providers of crypto-asset services that already provided their services before December 30, 2024 under the law applicable at that time may continue to provide these services until July 1, 2026 without an additional license.

This means that they are protected for one and a half years (note: shorter transitional periods may apply in other EU member states).

During this grandfathering period, service providers must submit an application for a permanent MiCAR authorization as a Crypto Assets Service Provider (CASP) if they wish to continue operating after 1 July 2026.

As soon as the service provider either receives MiCAR approval as a CASP or is denied approval, the existing protection ceases to apply with immediate effect. This means that all MiCAR obligations relevant to CASPs apply from this point onwards.

Product-related obligations are separate from this. There are differentiated transitional regulations for these, which initially differentiate according to the type of crypto assets.

Transitional provisions for asset referencing tokens

Transitional provisions only apply to asset referencing tokens that were issued before June 30, 2024. The prerequisite is that the issuer has already applied for approval before July 30, 2024 or – in the case of issuing credit institutions – has notified the competent authority accordingly.

The transitional regulation only applies until a decision is made on the application for authorization.

There is a graduated transitional regime for other crypto assets and e-money tokens

For crypto assets other than asset-backed tokens or e-money tokens that are still active, there is a graduated transitional regime that is linked in particular to admission to trading. However, even in these cases, the legal obligations (in particular to prepare white papers) do not cease to apply entirely, but the responsibilities are merely shifted.

First of all: For public offerings of crypto assets that have already expired before December 30, 2024, neither whitepapers need to be published nor the MiCAR requirements for marketing communications need to be met.

Crypto assets that are not offered for the first time until after December 30, 2024, on the other hand, are subject to the applicable MiCAR requirements. There are no longer any transitional provisions or grandfathering. The requirements for whitepapers and marketing communications must be observed.

Certain special regulations apply exclusively to crypto assets that were admitted to trading before December 30, 2024.

It is therefore necessary – and here there appear to be misunderstandings in the interpretation of the statutory transitional provision of Art. 143 para. 2 MiCAR – that the crypto assets were neither newly offered and not admitted to trading after December 30, 2024 (because then no transitional provision would apply), nor that they were merely offered to the public (then no transitional provision would apply either). Rather, timely admission to trading is also required.

Transitional regulation does not mean elimination, but postponement of legal obligations

Even if these conditions are met, the MiCAR obligations do not cease to apply; for the important and liability-relevant requirements for the publication of white papers, there is merely a postponement of the legal obligations.

As a reminder, for crypto assets admitted to trading (which are not asset-backed tokens or e-money tokens), MiCAR regulations generally require the provision of a whitepaper either by

• the provider,
• the person applying for the admission of such crypto assets to trading, or
• the operator of a trading platform.

Specifically, these obliged entities must submit a white paper to the competent market authority that meets the legally defined content requirements. This includes, for example, information on the underlying risks or the technology used. These requirements apply equally to all three parties concerned.

The transitional provisions now make an exception to this, according to which only the operators of the trading platform must ensure that the whitepaper is created, transmitted, published and continuously updated by December 31, 2027.

From a legal point of view, this transitional regulation thus leads to a temporary privilege for the provider and the person who has applied for admission to trading, whereby these two persons are usually identical.

The impact of privileges on practice is rather low

In practice, however, these privileges will only have a limited impact.

In practice, a trading platform regularly expects the provider (or the party applying for admission) to prepare the whitepaper for the admission of a crypto asset and to be liable for the content, at least in the internal relationship with the trading platform.

The transitional regulation only leads to a responsibility of the trading platform in the external relationship with the supervisory authority and investors.

A general lifting of the requirements for whitepapers is therefore not associated with this transitional regulation. Likewise, it does not result in a simplification of own issues that are not admitted to trading via a trading venue.