FAQ - ART issuers

Which entities - in addition to credit institutions - can issue/offer ARTs?

Legislative Decree 129/2024  provides that ARTs may be issued, offered to the public and admitted to trading not only by credit institutions, but also by specialized issuers of ARTs, investment firms, electronic money institutions and payment institutions (the latter two having established designated assets), as well as crypto-asset service providers.

Can an issuer/offeror of ARTs offer/seek admission to trading of ARTs also in other Member States?

Yes, an issuer/offeror of ARTs licensed under MiCA may provide services in a Member State other than the one where the licence was granted.

The normal passporting rules laid down in the national legislation transposing the Capital Requirements Directive (CRD) apply to credit institutions: the MiCA Regulation amended Annex I to the CRD, which contains the list of activities eligible for mutual recognition, to include the issuance of ARTs.

For other issuers/offerors of ARTs, the MiCA Regulation requires the applicant to provide in the application the list of host Member States in which it intends to offer/seek admission to trading of ARTs. Within 2 working days after licensing, competent authorities shall communicate the information required for updating the ESMA register to the single point of contact of the host Member States, the ESMA, EBA, ECB and any central bank concerned.

What is the supervisory regime for issuers of ARTs?

Compliance with the provisions of the MiCA Regulation is supervised by Banca d'Italia with regard to risk control, capital stability and sound and prudent management, and by CONSOB with regard to transparency, fair conduct, orderly trading and the protection of holders of ARTs.

For the prudential purposes set out above, Banca d'Italia shall, in particular, ensure compliance with the MiCA Regulation in terms of:

  1. capital adequacy and risk containment;
  2. corporate governance and general organizational, administrative and accounting requirements, internal controls, outsourcing of operational functions and arrangements with third parties for the management, investment and maintenance of the reserve of assets, and for business continuity;
  3. holding, composition, management, custody and investment of the reserve of assets, redemption policies and procedures, and prohibition on granting interest;
  4. corporate representatives and equity participants;
  5. recovery and repayment plans.

Banca d'Italia exercises AML/CFT supervisory tasks and powers exclusively on banking and financial intermediaries authorized to issue ARTs and verifies compliance with the requirements laid down in primary and secondary legislation and the overall adequacy of the relevant organizational and control arrangements. Other issuers of ARTs ('specialized issuers') are not supervised for AML/CFT purposes, as they are not included among the 'obliged entities' under EU law. In any event, when these operators are authorized to issue ARTs, Banca d'Italia assesses whether their business model exposes the issuer or sector to serious money laundering and terrorist financing risks and, in this case, refuses authorization (Article 21(2) of the MiCA Regulation).

For more details, please consult the note summarizing the competences of the two authorities published on 29 October 2024.

Is there an application form?

Yes, the applicant must use the template (see Downloads section) attached to the EBA's ITS on standard forms, templates and procedures for the information to be included in the application as issuers of ARTs under MiCAR for the preparation and submission of an application for authorization.

The licensing application includes, inter alia, a crypto-asset white paper, the content and format of which are specified in the MiCA Regulation (Article 19 and Annex II) and in Implementing Regulation (EU) 2024/2984.

What documents should be attached to the application?

The information and documents to be submitted with the licensing application are set out in EU legislation (MiCA Regulation, RTS on information for application for authorization to offer to the public and to seek admission to trading of ARTs and ITS on standard forms, templates and procedures for the information to be included in the application) and in the application form.

What prudential requirements apply to ART issuers?

Under Article 35 of MiCAR, issuers of ARTs must have at all times own funds equal to at least the higher of:

  1. €350,000;
  2. 2 per cent of the average amount of the reserve of assets (i.e. the average amount of reserve assets at the end of each calendar day, calculated over the previous six months); where the issuer offers more than one ART, the average amount of the reserve of assets shall be the sum of the average amounts of reserve assets securing each ART;
  3. one quarter of the fixed overheads of the previous year (amount subject to annual review and calculated in accordance with Article 67(3) of MiCAR).

In terms of own funds, the issuer must produce: (a) documentation demonstrating how the applicant calculated the amount in accordance with Article 35 of MiCAR; (b) for existing undertakings, an extract from the audited accounts or a public register certifying the amount of own funds; (c) for newly created undertakings, a bank statement issued by a credit institution confirming that the funds are deposited in the applicant's account.

Are issuers of ARTs subject to anti-money laundering obligations?

Banking and financial intermediaries issuing ARTs are already subject to anti-money laundering obligations in respect of  their entire business. Banca d'Italia has AML/CFT supervisory tasks and powers in relation to these entities, verifying their compliance with the requirements laid down in the applicable legislation.

'Specialized issuers' of ARTs are not supervised for AML/CFT purposes because EU legislation does not include them among the 'obliged entities'. In any event, when authorizing the issuance of ARTs, Banca d'Italia assesses whether the business model exposes the issuer itself or the sector to serious risks of money laundering and terrorist financing and, in this case, refuses authorization (Article 21 (2) of the MiCA Regulation).

What does the MiCA Regulation provide for with regard to crypto-asset white papers?

The crypto-asset white paper is a document containing, inter alia, information about the issuer, the characteristics of the token (including related rights and obligations), the underlying technology and its risks, and investors' rights.

For ARTs, the white paper, drawn up in accordance with Article 19 of the MiCA Regulation and Implementing Regulation (EU) 2024/2984, is approved by Banca d'Italia, in agreement with CONSOB, both at the application stage and in the event of subsequent amendments.

Issuers of ARTs shall publish on their website the approved white paper and make it publicly accessible by the starting date of the offer to the public or of admission to trading of the ART. The white paper shall remain available on the issuer's website as long as the ART is held by the public.

Who are the issuers of asset-referenced tokens exempted under Article 16(2) of MiCAR and what does the legislation provide for?

Issuers of asset-referenced tokens exempted under Article 16(2) of MiCAR are those for which at least one of the following two conditions applies:

  • over a period of 12 months, calculated at the end of each calendar day, the average value of the token shall never exceed €5 million or the equivalent amount in another official currency, and the issuer is not connected to a network of other exempted issuers;
  • the offering to the public of the token shall only be addressed to qualified investors and the asset-referenced token may only be held by those qualified investors.

These issuers are not required to apply for authorization from the competent authorities, but they must submit to Banca d'Italia and CONSOB a crypto-asset white paper, drawn up in accordance with Article 19 of the MiCA Regulation and Implementing Regulation (EU) No 2024/2984 (see Article 13 of Legislative Decree 129/2024).

What are the significant asset-referenced tokens?

Asset-referenced tokens (or ARTs) may be classified as 'significant' by the EBA, either at the initiative of the EBA or of the issuer itself, in cases of voluntary classification. The criteria for classifying an ART as 'significant' are listed in Article 43 of MiCAR and take into account both quantitative aspects (e.g. number of token holders, value and market capitalization, average number and aggregate average value of transactions) and qualitative aspects (e.g. international significance of the issuer, interconnectedness of the token or of its issuers with the financial system).

Issuers of significant ARTs are subject to additional requirements (see Article 45 of MiCAR) and supervisory responsibilities are transferred from national competent authorities to the EBA. The establishment of a supervisory college for each issuer of a significant ART is envisaged in order to facilitate the exercise of supervisory functions and to serve as a tool for coordinating supervisory activities. The EBA, ESMA, the ECB, the competent authorities of the home Member State where the issuer of the significant token is established and other competent authorities - such as, where relevant, those overseeing the most relevant crypto-asset service providers (CASPs) providing custody and administration of crypto-assets on behalf of clients in relation to the significant asset-referenced tokens - shall participate in the supervisory college.

Under what conditions can the licence of an ART issuer be withdrawn?

Under the MiCA Regulation (Article 24), the licence of an ART issuer is withdrawn in the following situations:

  1. the issuer has ceased business for six consecutive months, or has not used its licence for 12 consecutive months;
  2. the issuer has obtained its licence by irregular means, including by making false statements in its licensing application as referred to in Article 18 or in a modified crypto-asset white paper in accordance with Article 25;
  3. the issuer no longer meets the licensing requirements;
  4. the issuer has seriously infringed the provisions of MiCAR;
  5. the issuer has been subject to a redemption plan;
  6. the issuer has expressly renounced its licence or has decided to cease operations;
  7. the issuer's activity poses a serious threat to market integrity, financial stability, the smooth operation of payment systems, or exposes the issuer or the sector to serious risks of money laundering and terrorist financing.

The competent authorities shall also withdraw the licence of an issuer of ARTs where the ECB or, where applicable, the relevant central bank, issues an opinion that the ART poses a serious threat to the smooth operation of payment systems, monetary policy transmission or monetary sovereignty.