Founded in Paris in 1920, Gide is a leading international law firm with 12 offices spread throughout the world.
Gide is physically present in six regions of the world, with 11 offices, enabling it to act on cases globally.
29 January 2024
The European Securities and Markets Authority ("ESMA") has published two consultation papers on reverse solicitation and the conditions and criteria for the classification of crypto-assets as financial instruments in the context of the Markets in Crypto-Assets Regulation ("MiCA Regulation").
On 29 January 2024, ESMA published two consultation papers in connection with the MiCA Regulation on guidelines on reverse solicitation and on conditions and criteria for the classification of crypto-assets as financial instruments. Stakeholders have until 29 April 2024 to submit their comments.
Following on from the different consultation papers published alongside the European Banking Authority since July 2023 in connection with the MiCA Regulation, these two consultation papers were particularly awaited.
In the first consultation paper, ESMA suggests a restrictive approach to the reverse solicitation exemption under the MiCA Regulation. ESMA therefore publishes a first set of guidelines to frame the benefits of this exemption, covering in particular the means of solicitation, the person soliciting, and the exclusive initiative of the client. In this paper, ESMA is also consulting on a set of guidelines aimed at harmonizing the supervision practices to detect and prevent the circumvention of the reverse solicitation exemption.
Given the divergent definitions of "financial instruments" among Member States, ESMA is also consulting on draft guidelines on the classification of crypto-assets as financial instruments aim to propose common conditions and criteria. In particular, ESMA sets out criteria for qualifying crypto-assets as transferable securities, money-market instruments, collective investment undertakings, derivative contracts or emission allowances. The proposed guidelines also provide details on the handling of unique and non-fungible crypto-assets (NFTs), as well as hybrid crypto-assets.
For further information, please contact the Gide 255 team dedicated to digital finance and Web3.
