Beyond Hyperlinks: MiCAR Whitepaper Compliance for CASPs
The EU Markets in Crypto-Assets Regulation (MiCAR) requires certain crypto-asset service providers (CASPs)—namely CASPs operating trading platforms, exchanging crypto-assets for funds or other crypto-assets, providing advice on crypto-assets or providing portfolio management on crypto-assets—to provide their clients with hyperlinks to any white papers for the crypto-assets in relation to which they are providing those services (Art. 66 (3) MiCAR).
While the hyperlink requirement serves as a general rule, CASPs should be aware that additional white paper obligations may apply depending on the nature of their services and how they are marketed. To understand why, it is important to take a step back and examine the general obligations under MiCAR with regard to white papers.
Under MiCAR, the obligation to draw up, notify and publish a white paper arises in two primary cases:
When crypto-assets are offered to the public (Art. 4, 16 and 48 MiCAR);
When crypto-assets are admitted to trading on a trading platform for crypto-assets (Art. 5, 16 and 48 MiCAR).
Although the concept of an 'offer to the public' is often associated with initial coin offerings (ICOs) or other forms of primary issuance, the scope of this definition under MiCAR is significantly broader. Crucially, ESMA Q&As make clear that CASPs may themselves be considered to be conducting public offers depending on the nature of the services they provide.
In particular, CASPs engaged in exchange services, crypto brokerage, placement services or similar activities—where crypto-assets can be acquired directly or indirectly by clients—may themselves be conducting public offers of the crypto-assets they make available.
This regulatory nuance is frequently overlooked by CASPs. However, it is essential for firms to recognize that their role as intermediaries can, in many cases, bring them within the scope of MiCAR's public offering rules. Failing to identify such exposure may lead to inadvertent non-compliance, particularly where crypto-assets being offered do not have a MiCAR-compliant white paper.
Offer to the public
The term 'offer to the public' is defined in Art. 3 (1) (12) MiCAR as a communication to persons in any form, and by any means, presenting sufficient information on the terms of the offer and the crypto-assets to be offered so as to enable prospective holders to decide whether to purchase those crypto-assets.
This definition is intentionally broad and captures a wide range of communications. For instance, publishing exchange rates, methods of payment, or transaction fees—especially where accompanied by the opportunity to acquire the crypto-asset—can be deemed a public offer. The fact that such information is only visible to registered users does not necessarily exempt the activity from such a legal classification.
Accordingly, CASPs must assess not only the technical classification of the crypto-assets they handle but also the structure and presentation of their services to determine whether they are, in effect, conducting a public offer under MiCAR.
White paper obligations for CASPs
If the services provided by a CASP qualify as an offer to the public, the CASP must ensure that the crypto-assets offered in connection with such services comply with MiCAR's white paper requirements. These requirements vary depending on the type of crypto-asset offered.
Obligations related to stablecoins
The requirements are most strict for stablecoins, which include both asset-referenced tokens and e-money tokens. As a general rule, stablecoins can only be offered to the public by their issuers, who must be authorized under MiCAR. However, other persons may also offer stablecoins to the public if they obtain the written consent of the issuer.
Accordingly, pursuant to Art. 16 and 48 MiCAR, CASPs whose services amount to a public offering of stablecoins must ensure that:
a MiCAR-compliant white paper has been published, and
the CASP has obtained written consent from the issuer.
Publicly offering services related to non-compliant stablecoins is prohibited.
Exemptions for asset-referenced tokens
MiCAR provides limited exemptions from the white paper requirements for asset-referenced tokens. Written consent of the issuer is not required in the following cases (see Art. 16 (2) MiCAR):
over a period of 12 months, calculated at the end of each calendar day, the average outstanding value of the asset-referenced token issued by an issuer never exceeds EUR 5 000 000, or the equivalent amount in another official currency, and the issuer is not linked to a network of other exempt issuers; or
the offer to the public of the asset-referenced token is addressed solely to qualified investors and the asset-referenced token can only be held by such qualified investors.
However, even in these cases the issuer is required to draw up, notify and publish a MiCAR-compliant white paper (Art. 16 (2) second subparagraph MiCAR). CASPs should therefore ensure that they provide their clients with hyperlinks to such white papers.
No exemptions for e-money tokens
MiCAR does not provide comparable exemptions for public offers of e-money tokens. CASPs whose services amount to a public offering must therefore ensure that a MiCAR-compliant white paper has been published and receive written consent of the issuer in order to offer e-money tokens as part of their services (Art. 48 (1) MiCAR).
Obligations related to 'other' crypto-assets
CASPs that publicly offer 'other' crypto-assets—meaning those not classified as asset-referenced tokens or e-money tokens—are also subject to MiCAR's white paper requirements.
Where no MiCAR-compliant white paper has been published, the obligation to draw up, notify and publish a white paper falls to the CASP if it intends to publicly offer the crypto-asset in relation to its services. However, if a MiCAR-compliant white paper is available and the person responsible for drawing up the white paper consents to its use in writing, then providing customers with a hyperlink to the white paper is sufficient. In such cases no additional white paper needs to be drawn up.
In addition, MiCAR-compliant white papers for 'other' crypto-assets are not required if the crypto-asset or offering qualifies for any of the following exemptions (Art. 4 (2) and (3) MiCAR):
the crypto-asset is offered for free;
the crypto-asset is automatically created as a reward for the maintenance of the distributed ledger or the validation of transactions;
the offer concerns a utility token providing access to a good or service that exists or is in operation;
the holder of the crypto-asset has the right to use it only in exchange for goods and services in a limited network of merchants with contractual arrangements with the offeror.
an offer to fewer than 150 natural or legal persons per Member State where such persons are acting on their own account;
over a period of 12 months, starting with the beginning of the offer, the total consideration of an offer to the public of a crypto-asset in the Union does not exceed EUR 1 000 000, or the equivalent amount in another official currency or in crypto-assets;
an offer of a crypto-asset addressed solely to qualified investors where the crypto-asset can only be held by such qualified investors.
Conclusion
CASPs must not assume that simply linking to an existing white paper will always suffice for MiCAR compliance. Depending on the nature of their services and how these are structured and communicated, CASPs may themselves be deemed to be making an offer to the public—potentially triggering direct obligations to draw up, notify, and publish a white paper or to obtain consent from the crypto-asset's issuer.
This is particularly critical for CASPs dealing with stablecoins, where public offering rules are significantly more restrictive, and where written issuer consent and a MiCAR-compliant white paper are often mandatory. Ultimately, CASPs must often go beyond hyperlinking and adopt a proactive approach to compliance, assessing on a case-by-case basis whether their services amount to a public offer under MiCAR.