MiCA Under the Microscope: What the EBA and the ECB Told Brussels About the Review of the Markets in Crypto-Assets Regulation
The European Banking Authority (EBA) and the European Central Bank (ECB) published their detailed responses on the European Commission’s targeted consultation on the review of the Markets in Crypto-Assets Regulation (MiCA). This post follows the consultation’s structure, highlighting the most important points from each authority before drawing a conclusion on overall direction.
1. Scope and Definitions
Both authorities agree that MiCA’s boundary with the rest of EU financial law needs sharper delineation, but not expansion.
The EBA recommends that tokenised financial instruments stay outside MiCA and remain governed by MiFID/MiFIR, applying „same risk, same rule” logic. Departing from this would complicate authorisation scope, collateral eligibility and prudential treatment of exposures to crypto-assets under BCBS SCO60. It urges harmonising the EU definition of „financial instrument”, notes the same token can be classified differently across Member States, and flags persistent difficulties applying the definitions for asset-referenced token (ART) and electronic money token (EMT) to commodity-linked, wrapped and hybrid tokens.
The ECB takes the same view: extending MiCA to all tokenised assets „would not be the most appropriate way” to achieve legal certainty, creating parallel regimes and arbitrage without fixing the real problem — divergent national legal frameworks. It also flags that the ART category itself needs „further reflection” given its unclear boundary with EMTs and financial instruments such as money market funds.
2. Requirements Applicable to ARTs, EMTs and Their Issuers
The authorities put a significant focus on the rules concerning stablecoins.
Reserve composition / bank-deposit floor. Both suggest replacing the fixed minimum-deposit requirement (30%/60% for significant tokens) by risk-sensitive liquidity buckets. The EBA recommends a cost-benefit analysis of reducing the percentage, conditional on „other” reserve assets being high-quality and liquid. The ECB goes further, recommending outright removal of the fixed percentage in favour of one- and five-day liquidity-bucket floors, using the EBA's draft RTS (40%/20% daily, 60%/30% weekly) as a starting point. Both cite the same concern: concentrated issuer deposits create a bank-contagion channel.
Issuance model for credit institutions. Credit institutions are currently not subject to the requirements to maintain and segregate reserve assets. The ECB opposes mandating issuance via a separate electronic money institution subsidiary, arguing this could worsen other unsecured creditors' (i.e. depositors and bondholders) position without strengthening bank soundness, preferring supervisory discretion on a case-by-case basis. The EBA reaches the same practical conclusion on technological-neutrality grounds. The EBA similarly suggests introducing a discretionary carve-out right for the regulator requiring issuance through an electronic money institution subsidiary where needed, to insulate core banking operations.
Interest/yield prohibition. Both are unambiguous that the ban must be maintained. The ECB adds that it must extend to unregulated activities (e.g. through lending, staking) already being used to create indirect yield.
Redemption. Both flag the absence of a maximum redemption timeframe. The EBA wants legislative clarification referencing emerging T+1/T+2/T+4 practice; the ECB calls the gap a potential „hidden cost” for holders and floats the idea of limited redemption fees outside the recovery-plan scenario.
Significance criteria and third-country multi-issuer schemes. Both see this as the most significant open risk. The EBA considers the risk of issuer runs and reserve imbalance across jurisdictions as significant for third-country multi-issuer schemes (TCMIS), with existing safeguards only „slightly effective” once key functions sit outside the EU. The ECB endorses the ESRB Recommendation on TCMIS in full, including preferably a prohibition of TCMIS. Both want significance assessed globally and (insofar as permitted) participation in TCMIS added as a separate trigger.
Equivalence and crisis management. Insofar as permitted, the EBA and the ECB support equivalence for third-country stablecoin regimes only as a floor — subject to strict reciprocity and retained EU discretion to impose conditions. Both also want a dedicated, non-bank crisis-management/resolution toolkit for significant issuers, better coordinated with BRRD.
3. The Legal Framework for CASPs and Multi-Function Groups
Supervisory architecture. The ECB supports the Commission proposal under the Market Integration Package to transferring authorisation, supervision and enforcement for all crypto-asset service providers (CASPs) from national regulators to ESMA to reduce fragmentation, with a carve-out keeping broader credit-institution supervision within the SSM.
Prudential requirements. Both suggest that CASP’s own-fund rules could be made more risk-sensitive rather than tied only to fixed overheads. The ECB notes current calibration cannot “provide a buffer against losses from financial and non-financial risks” and considers alignment with PSD3's marginally more flexible approach (i.e. to adjust own funds requirements within a predefined margin, e.g. 20%). The EBA similarly suggests potentially introducing a risk-based calculation method for own funds and expanded supervisory powers to require additional own funds for complex business models, involving unregulated strategies such as investing crypto-assets on own account.
Significant CASPs and group structures. The ECB proposes broadening the „15 million active users” trigger to other metrics (such as size, cross-border activity, systemic relevance) and requiring significant CASPs (and relevant third-country groups) to establish an intermediate EU parent undertaking modelled on the CRD approach. An intermediate EU parent undertaking would facilitate group-wide supervision and enable prudential consolidation. The EBA independently reaches a converging conclusion: enhanced oversight cooperation between national competent authorities and European supervisory authorities, group-level reporting, new supervisory colleges or consolidated supervision could be appropriate for groups whose activities are not limited to crypto-asset services and where the EBA finds that group-level arrangements are „largely non-existent” if no credit institution is involved. The ECB cites ESRB findings that such groups „operate largely outside consolidated supervision”, with evidence of „bank-like intermediation” in many of the largest groups.
MiCA/PSD3 interplay. The ECB and the EBA welcome PSD3/PSR clarifications but flag the new opt-in mechanism allowing payment institutions to provide EMT-related crypto-asset services via notification as a source of „regulatory asymmetry” needing clarification.
4. Topics Beyond the Current Scope of MiCA
Here both institutions most clearly call for extending the perimeter.
Crypto lending, borrowing and staking. Both answer „yes” to Union-level regulation. The EBA's evidence shows intermediated lending/borrowing across at least 16 Member States, dominated by two stablecoins (one unauthorised), creating yield-arbitrage (which EMT/ART issuers cannot grant) and consumer-protection risks around disclosure, leverage and collateral. On this basis, the ESA recommends a cost-benefit analysis on extending CASP services to include intermediating borrowing and lending and imposing DeFi-access requirements (e.g. suitability requirements or leverage caps). The ECB is more categorical: these activities should be regulated at Union level, with the approach built on a substance-based delineation on whether the specific offering includes agency services, investment services or bank-like credit intermediation.
DeFi. Both note fully decentralised protocols fall outside MiCA by design, but most „DeFi” is less decentralised than the label suggests, and CASP-facilitated access creates a circumvention risk. The ECB adds that DeFi activity within the EU appears „very low” but still wants improved governance transparency, possibly via tailored DAO legal regimes.
Tokenised deposits. Both treat this as a boundary problem: tokenised deposits should stay within CRD/CRR, but the lack of a harmonised EU „deposit” definition blurs the CRD/CRR–MiCA line. The EBA explicitly calls on the Commission to harmonise the definition; the ECB reaches the same conclusion.
Legal treatment of tokens / conflicts of law. The ECB weighs four options — a „28th regime” recognising the legal effects of DLT registers recording tokens, including rules on good faith acquisition and on opposability and enforceability vis-à-vis third parties, full harmonisation, partial harmonisation, and a conflict-of-laws regime — concluding that full or partial harmonisation would best serve legal certainty, while a conflict-of-laws-only approach, though perhaps most feasible politically, would not reduce fragmentation.
Conclusion: Where Is This Heading?
Read together, the responses point not toward blanket deregulation or a wholesale MiCA expansion, but toward targeted recalibration and completion of the perimeter, along four axes:
- More regulation where real gaps exist — crypto lending, borrowing and staking within a Union framework, a dedicated crisis-management regime for non-bank issuers, and group-level/consolidated supervision for CASPs and multi-function groups. The ECB and ESAs also want the TCMIS toolkit substantially strengthened before such schemes are permitted.
- Selective relaxation with offsetting safeguards — replacing the fixed bank-deposit floor with risk-sensitive liquidity buckets, paired with tighter diversification and concentration limits.
- Harmonisation and legal certainty as the overriding theme — significant attention goes to fixing undefined concepts („financial instrument”, „deposit”, „Union holder”, the ART/EMT boundary), framed by the EBA as a precondition for consistency and by the ECB as a single-market imperative extending into private law.
- International alignment as a benchmark, not a basis for deference — both invoke FSB and BCBS SCO60 standards. The ECB is sceptical towards third-country equivalence and suggest equivalence only as a floor subject to reciprocity and continued EU discretion to impose conditions.
