This commentary was written in collaboration with Banking Circle.
It was one thing for the European Union (EU) to talk about enacting comprehensive cryptocurrency regulation: It is another to pass the corresponding legislation. That is exactly what the EU did in late April with the long-anticipated Markets in Cryptoassets (MiCA) directive. MiCA will regulate the cryptocurrency sector with common rules across all 27 of the EU’s member states.
Several years in the making, MiCA is part of a broader push by the EU to regulate digital finance more like it does the rest of financial services. Other legislation focused on this objective includes the Digital Operational Resilience Act (DORA) and the DLT Pilot Regime Regulation.
MiCA’s impact
Once it goes into effect in July 2024, MiCA will classify crypto in three categories subject to different regulation based on their underlying risk: electric money tokens (EMTs), asset-referenced tokens (ARTs) – both of which are variants of stablecoins – and all others. The “others” will include non-pegged payment tokens like bitcoin.
Under MiCA, any firm providing crypto services in the EU must register in one of the bloc’s member states. Once they do that, they can operate throughout the EU. The European Banking Authority and the European Securities and Markets Authority will be responsible for ensuring compliance by crypto firms to eschew another FTX-like catastrophe.
And it is no exaggeration to say that the sudden, rapid implosion of the erstwhile US$32 billion exchange highlighted the urgency of implementing regulations for the crypto sector.
“Under the MiCA regime, no company providing crypto assets in the EU would have been allowed to be organized, or perhaps I should say disorganized, in the way FTX reportedly was,” Alexandra Jour-Schroeder, deputy director general at the European Commission’s financial-services arm, said in November, shortly after the once-massive exchange imploded.
With the adoption of a unified regulatory framework for digital assets, the EU is taking a step no other jurisdiction has to date. Chances are – barring a dramatic increase in severity of the crypto bear market – that the many crypto fence sitters will feel more pressure to act.
“It would be a surprise if other jurisdictions like the UK and the US aren’t quick to follow suit and further accelerate their crypto regulatory efforts,” Alisa DiCaprio, chief economist at enterprise blockchain firm R3, told Bloomberg.
In fact, in the lead-up to MiCA’s passage in April, crypto venture capital investment in Europe overtook that in the U.S., according to data compiled by Pitchbook. Prior to the January-March period, Europe had rarely, if ever, led the U.S. in that category.
Possible shortcomings
The EU should be commended for its efforts to develop a robust and enduring regulatory framework for digital assets. It is likely that the benefits of the legislation will outweigh its shortcomings, and it could set a global standard for crypto regulations.
That said, MiCA has a few potential problem areas worthy of note. CoinDesk identified one in late 2022: Although MiCA requires companies targeting the EU market to register with a local regulator, certain exemptions exist that could be exploited.
For instance, if a company based outside the EU provides relevant crypto-asset services at the "own exclusive initiative" of a customer residing within the bloc, that company does not have to obtain authorization under MiCA. Similar provisions exist under the EU’s Markets in Financial Instruments Directive 2014 (MiFID II).
Known as “reverse solicitation,” this scenario exists for practical reasons. It is challenging for regulators to control how companies and individuals in the EU engage with overseas crypto firms and a blanket ban on such activity like China has implemented is not feasible for Europe.
EU officials say that the risk of reverse solicitation being abused could be mitigated if other jurisdictions adopt similar regulations to MiCA. Perhaps, but easier said than done. It is too early to say whether other countries will follow the MiCA model.
MiCA also imposes some restrictions on stablecoins that crypto diehards are chafing at. MiCA will require operations to maintain local reserves and face trading caps on non-euro-denominated tokens not backed by fiat currency.
Glass half full
Imperfect as it may be, MiCA represents an important step forward in the ongoing and arduous process of cryptocurrency regulation. Detractors of the legislation, which often point out it does not regulate NFTs, should recognize that effective regulation of a new asset class and its underlying technology does not happen overnight.
What MiCA will accomplish in the short run is an elevation of cryptocurrency from the financial underground to the aboveboard mainstream. Bringing crypto out of the shadows and under some centralized regulatory control will disappoint some decentralization zealots, but more importantly, it will help curb fraud, money laundering and other malfeasance that easily proliferate in the absence of proper regulation.
MiCA could also, in the long run, boost the development of a thriving Web3 ecosystem undergirded by stablecoins. For stablecoins to be adopted widely, two factors are crucial: building the proper infrastructure and implementing the right regulation. To the first point, better infrastructure is still needed to enable Web3 payments. With regards to the second, MiCA is likely to be a key part of it.
MiCA mandates that stablecoins are sufficiently backed, have capital requirements for issuers, and have issuance limits. It also focused on transparency. The clarity introduced by these rules will likely boost the confidence of consumers and business to use stablecoins, ultimately catalyzing much wider adoption throughout the EU.
Asset-backed stablecoins are ideal for Web3 payments given their stability against fiat currencies, giving banks and payments providers the ability to facilitate payments outside traditional bank rails. Stablecoins also have significant reconciliation, speed and cost advantages.
Wider adoption of stablecoins, which are cheaper and faster than other instant payment schemes, could ultimately help break down payment barriers, democratizing finance and creating new international growth opportunities for SMEs, especially in markets where correspondent banking is less mature.
This commentary was written in collaboration with Banking Circle and originally appeared on Banking Circle.