97 Amendments of Eva KAILI related to 2020/0265(COD)
Amendment 50 #
Proposal for a regulation
Recital 8 a (new)
Recital 8 a (new)
(8a) This regulation should only apply to crypto-assets that may be transferred among holders without the issuers permission. Crypto-assets that are unique and not fungible with other crypto-assets, which are not fractionable and are accepted only by the issuer, including merchant’s loyalty schemes, represent IP rights, guarantees, certificate authenticity of a unique physical asset, or any other right not linked to the ones that financial instruments bear, and are not accepted to trading at a crypto-asset exchange, should be excluded from the scope of this Regulation. However, this Regulation should explicitly apply if the non-fungible token grants to the holder or its issuer specific rights linked to those of financial instruments, such as profit rights or other entitlements. In these cases, the tokens may then be assessed and treated as “security tokens”, and be subject, as well as the issuer, to various requirements under relevant financial market regulations, such as Directive (EU) 2015/849 (the AMLD), Directive 2014/65/EU (the MiFID II), Regulation (EU) 2017/1129 (the Prospectus Regulation), Regulation (EU) No 596/2014 (the MAR) and the Directive 2014/57/EU (the MAD).
Amendment 52 #
Proposal for a regulation
Recital 8 b (new)
Recital 8 b (new)
(8b) For the crypto-assets that are unique and not fungible with other crypto-assets, which are not fractionable and are accepted only by the issuer, represent IP rights, guarantees, certificate authenticity of a unique physical asset such as a piece of art, or any other right not linked to the ones that financial instruments bear, and are not accepted to trading at a crypto-asset exchange, it is proposed to consider whether an EU - wide bespoke regime should be proposed by the European Commission.
Amendment 61 #
Proposal for a regulation
Recital 10 a (new)
Recital 10 a (new)
(10a) With the aim to establish a future- proof regulation and in order to avoid circumvention, the definition of asset- referenced token (ART) should include reference to any other value or right.
Amendment 62 #
Proposal for a regulation
Recital 11
Recital 11
(11) Given the different risks and opportunities raised by crypto-assets, it is necessary to lay down rules for issuers of crypto-assets that should be any legal person who offers to the public any type of crypto-assets or seeks the admission of such crypto-assets to a trading platform forand offerors of crypto-assets.
Amendment 79 #
Proposal for a regulation
Recital 17 a (new)
Recital 17 a (new)
(17a) As an offer of crypto-assets will not necessarily be underwritten or guaranteed, there is a risk that the funds raised are eventually significantly lower than the total consideration initially targeted, and that the proceeds will be insufficient to fund the project envisaged by the issuer. In these circumstances, investors who subscribed to the offer should be protected. Issuers of crypto- assets should therefore be required to specify in their whitepaper a minimum subscription target (soft cap) and to return funds to investors expeditiously where their offer does not reach such target. This regulation should set out the minimum amount permissible for such a soft cap
Amendment 97 #
Proposal for a regulation
Recital 29
Recital 29
(29) A competent authority should refuse authorisation where the prospective issuer of asset-referenced tokens’ business model may pose a serious threat to financial stability, monetary policy transmission and monetary sovereignty. The competent authority should consult the EBA and ESMA and, where the asset- referenced tokens is referencing Union currencies, the European Central Bank (ECB) and the national central bank of issue of such currencies before granting an authorisation or refusing an authorisation. The EBA, ESMA, and, where applicable, the ECB and the national central banks should provide the competent authority with a non-binding opinion on the prospective issuer’s application. Opinions should be non-binding with the exception of those of the ECB and the Member States’ central banks on monetary policy and financial stability issues. Where authorising a prospective issuer of asset- referenced tokens, the competent authority should also approve the crypto-asset white paper produced by that entity. The authorisation by the competent authority should be valid throughout the Union and should allow the issuer of asset-referenced tokens to offer such crypto-assets in the Single Market and to seek an admission to trading on a trading platform for crypto- assets. In the same way, the crypto-asset white paper should also be valid for the entire Union, without possibility for Member States to impose additional requirements.
Amendment 109 #
(37) In order to stabilise the value of their asset-referenced tokens, issuers of asset-referenced tokens should constitute and maintain a reserve of assets backing those crypto-assets at all times. Such reserve constitutes a guarantee to the issuer liability represented by the asset- referenced token. Issuers of asset- referenced tokens should ensure the prudent management of such a reserve of assets and should in particular ensure that the creation and destruction of asset- referenced tokens are always matched by a corresponding increase or decrease in the reserve assets and that such increase or decrease is adequately managed to avoid adverse impacts on the market of the reserve assets. Issuers of asset-backed crypto-assets should therefore establish, maintain and detail policies that describe, inter alia, the composition of the reserve assets, the allocation of assets, the comprehensive assessment of the risks raised by the reserve assets, the procedure for the creation and destruction of the asset-referenced tokens, the procedure to purchase and redeem the asset-referenced tokens against the reserve assets and, where the reserve assets are invested, the investment policy that is followed by the issuer.
Amendment 125 #
Proposal for a regulation
Recital 51
Recital 51
(51) This Regulation should not affect the possibility for persons established in the Union to receive crypto-asset services by a third-country firm at their own exclusive initiative. Where a third-country firm provides crypto-asset services at the own exclusive initiative of a person established in the Union, the crypto-asset services should not be deemed as provided in the territory of the Union. Where a third-country firm solicits clients or potential clients in the Union or promotes or advertises crypto-asset services or activities in the Union, it should not be deemed as a crypto-asset service provided at the own exclusive initiative of the client. In such a case, the third-country firm should be authorised as a crypto-asset service provider. A practise whereby a third-country firm includes general clauses in its Terms of Business or through the use of online pop-up “I agree” boxes where by clients state that any transaction is executed on the exclusive initiative of the client, should not deemed as an attempt to circumvent the rules of this Regulation.
Amendment 137 #
Proposal for a regulation
Recital 65 a (new)
Recital 65 a (new)
(65a) Competent authorities shall take appropriate supervisory action where they identify that an ART is used as a means of payment. Before they consider withdrawing an issuer’s license, they may make public the fact that an ART is increasingly used as a means of payment. Where appropriate, they may also prohibit all regulated entities the acceptance and any services related to investment ART.
Amendment 157 #
1. This Regulation applies to persons that are engaged: (a) in the issuance of crypto- assets orassets, except crypto-assets that are unique and not fungible with other crypto-assets, which are not fractionable and transferable directly to other holders without the issuer’s permission, are accepted only by the issuer, including merchant’s loyalty schemes, represent IP rights, guarantees, certificate authenticity of a unique physical asset, or any other right not linked to the ones that financial instruments bear, and are not accepted to trading at a crypto-asset exchange; or (b) provide services related to fungible crypto- assets in the Union.
Amendment 199 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3
Article 3 – paragraph 1 – point 3
(3) ‘asset-referenced token’ means a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referring to any other value of several fiat currencies that are legal tender, one or several commodities or one or several crypto-assets,r right or combination thereof, including one or several official currencies orf a combination of such assetsuntry;
Amendment 201 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 a (new)
Article 3 – paragraph 1 – point 3 a (new)
(3a) “Payments ART’ means an asset- referenced token that refers to one or more official currencies of a country or is regularly used as a means of payment;
Amendment 202 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 b (new)
Article 3 – paragraph 1 – point 3 b (new)
(3b) ‘Investment ART’ means an asset- referenced token that is not a Payments ART;
Amendment 205 #
Proposal for a regulation
Article 3 – paragraph 1 – point 4
Article 3 – paragraph 1 – point 4
(4) ‘electronic money token’ or ‘e- money token’ means a type of crypto-asset the main purpose of which is to be used as a means of exchangepayment and that purports to maintain a stable value by referring to the value of a fiat currency that is legal tender and that otherwise fulfils the characteristics of ‘electronic money’ as defined in Article 2 (2) of Directive 2009/110/EC;
Amendment 209 #
Proposal for a regulation
Article 3 – paragraph 1 – point 5
Article 3 – paragraph 1 – point 5
(5) ‘utility token’ means a type of crypto-asset which is accepted only by the issuer and is intended to provide digital access to a good or service, available on DLT, and is only acceptedprovided only by the issuer of that token;
Amendment 215 #
Proposal for a regulation
Article 3 – paragraph 1 – point 6
Article 3 – paragraph 1 – point 6
(6) ‘issuer of crypto-assets’ means a legal person who offers to the public any type of crypto-assets or seeks the admission of such crypto-assets to a trading platform forthe identifiable natural or legal person who creates the crypto-assets;
Amendment 225 #
Proposal for a regulation
Article 3 – paragraph 1 – point 7
Article 3 – paragraph 1 – point 7
(7) ‘offer to the public’ means an offer to third parties to acquire a crypto-asset in exchange for fiat currency or other crypto-asset 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 potential holder/client to decide to purchase those crypto-assets. This definition also applies to the placing of crypto-assets through crypto-assets services providers;
Amendment 231 #
Proposal for a regulation
Article 3 – paragraph 1 – point 7 a (new)
Article 3 – paragraph 1 – point 7 a (new)
(7a) ‘offeror’ means any identifiable legal or natural person, including the issuer, which offers crypto-assets to the public;
Amendment 233 #
Proposal for a regulation
Article 3 – paragraph 1 – point 7 b (new)
Article 3 – paragraph 1 – point 7 b (new)
(7b) 'fork' means an operation resulting in the duplication of an existing distributed ledger, creating in effect another version of such ledger and leading them to run simultaneously, that gives rise of new crypto-assets which may have material value and in quantity equivalent to crypto-assets circulating on the initial ledger;
Amendment 235 #
Proposal for a regulation
Article 3 – paragraph 1 – point 8
Article 3 – paragraph 1 – point 8
(8) ‘crypto-asset service provider’ means any person whose occupation or business is the provision of has been authorised to provide one or more crypto- asset services to third parties on a professional basis in accordance with art.53;
Amendment 282 #
Proposal for a regulation
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
(c) the crypto-assets are unique and not fungible with other crypto-assets; are not fractionable and transferable directly to other holders without the issuer’s permission, are accepted only by the issuer, including merchant’s loyalty schemes, represent IP rights, guarantees, certificate authenticity of a unique physical asset, or any other right not linked to the ones that financial instruments bear, and are not accepted to trading at a crypto-asset exchange;
Amendment 297 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Where the offer to the public of crypto-assets, other than asset-referenced tokens or e-money tokens, concerns utility tokens for a service that is not yet in operation, tThe duration of the public offer as described in the crypto-asset white paper shall not exceed 12 months.
Amendment 302 #
Proposal for a regulation
Article 4 – paragraph 3 a (new)
Article 4 – paragraph 3 a (new)
3a. No additional white paper shall be required in any subsequent offer of crypto-assets or when seeking admission to trading within a period of twelve months from the date of the initial offer as long as a white paper is available in accordance with Article 5, updated in accordance with Article 11, and the offeror responsible for drawing up such white paper consents to its use by means of a written agreement.
Amendment 305 #
Proposal for a regulation
Article 4 a (new)
Article 4 a (new)
Article 4a Paragraph 4 new. The crypto-asset white paper shall specify a minimum amount necessary to carry out the offer to the public of crypto-assets (‘soft cap’). Where subscriptions fail to reach the soft cap by the end of the subscription period, the offer to the public of crypto-assets shall lapse and all funds collected shall be returned to the investors. The soft cap shall be set at an amount no less than EUR 100 000. This system shall offer sufficient guarantees ensuring its reliability, operability and efficiency. The issuer of crypto-assets, other than asset- referenced tokens ore-money tokens, shall put in place a procedure to record all incoming subscriptions received during the offer, in order to be able to calculate at any time the consolidated proceed from the offer, taking into account all funds and crypto-assets raised, and monitor whether the soft cap is reached. The issuer ensures that the funds and crypto- asset collected via the offering cannot be transferred to the recipient of the funds and digital assets or used by said recipient if the minimum amount necessary to complete the issue (soft cap), as defined by the token issuer in the information document, is not reached.
Amendment 311 #
Proposal for a regulation
Article 5 – paragraph 1 – point a a (new)
Article 5 – paragraph 1 – point a a (new)
(aa) a detailed description of the issuer, including a summary of key financial information regarding the issuer, a detailed description of the issuer’s project, and a presentation of the main participants involved in the project's design and development;
Amendment 314 #
Proposal for a regulation
Article 5 – paragraph 1 – point a b (new)
Article 5 – paragraph 1 – point a b (new)
(ab) if different from the issuer, the identification of the offeror, a description of the offeror’s relationship with the issuer, and a summary of key financial information regarding the offeror;
Amendment 318 #
Proposal for a regulation
Article 5 – paragraph 1 – point b a (new)
Article 5 – paragraph 1 – point b a (new)
(ba) if different from the issuer and the offeror, the identification of the person which prepared the white paper and the reason why that person prepared the white paper;
Amendment 320 #
(d) a detailed description ofn the rights and obligations attached to the crypto- assets and the procedures and conditions for exercising those rightsplanned amount of the issue, in particular the minimum amount allowing the project to be carried out (‘soft cap’), the target amount, and the maximum amount that will automatically close the subscriptions when reached (‘hard cap’);
Amendment 322 #
Proposal for a regulation
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) information on the underlying technology and standards applied by the issueeffective arrangements in place to monitor and safeguard the funds, or of ther crypto- assets allowing for the holding, storing and transfer of those crypto-assets, raised during such offer;
Amendment 339 #
Proposal for a regulation
Article 5 – paragraph 9
Article 5 – paragraph 9
9. The crypto-asset white paper shall be drawn up in at least one of the official languages of the home Member State or in a language customary in the sphere of international financeEnglish.
Amendment 347 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Competent authoritiesESMA shall not require an ex ante approval of a crypto- asset white paper, nor of any marketing communications relating to it before their publication.
Amendment 350 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Issuers of crypto-assets, other than asset-referenced tokens or e-money tokens, shall notify their crypto-asset white paper, and, in case of marketing communications as referred to in Article 6, such marketing communications, to the competent authority of their home Member StateESMA at least 20 working days before publication of the crypto-asset white paper. That competent authorityESMA may exercise the powers laid down in Article 82(1).
Amendment 414 #
Proposal for a regulation
Article 16 a (new)
Article 16 a (new)
Amendment 416 #
Proposal for a regulation
Article 17 – paragraph 1 – subparagraph 1 – point e
Article 17 – paragraph 1 – subparagraph 1 – point e
(e) detailed information on the nature and enforceability of the rights of holders, including any direct(i) redemption right or any claims,s that holders of asset- referenced tokens and any legal or natural person as referred in Article 35(3), may have on thehave against the issuer in accordance with [paragraph 1 of Article 32]; (ii) any other rights that holders of asset- resferve assets or against the issuerenced tokens may have against the issuer or in respect of the reserve assets, including how such rights may be treated in insolvency procedures. ;
Amendment 419 #
Proposal for a regulation
Article 17 – paragraph 1 – subparagraph 1 – point f
Article 17 – paragraph 1 – subparagraph 1 – point f
(f) where the issuer does not offer a direct right on the reserve assets, dedetailed information on the stabiled information on theisation mechanisms referred to in Article 35(4), including, where applicable, any proposed arrangements to ensure the liquidity of the asset-referenced tokens;
Amendment 423 #
Proposal for a regulation
Article 17 – paragraph 1 – subparagraph 2
Article 17 – paragraph 1 – subparagraph 2
Amendment 432 #
Proposal for a regulation
Article 18 – paragraph 4
Article 18 – paragraph 4
4. The EBA, ESMA, the ECB and, where applicable, a central bank as referred to in paragraph 3 shall, within 2 months after havingof receiveding the draft decision and the application file, issue a non- bindingn opinion on the application and transmit their non-binding opinions to the competent authority concerned. ThatOpinions should be non-binding with the exception of those of the ECB and the Member States’ central banks on monetary policy and financial stability issues. The competent authority shall duly consider those non-binding opinions and the observations and comments of the applicant issuer.
Amendment 439 #
Proposal for a regulation
Article 19 – paragraph 1
Article 19 – paragraph 1
1. Competent authorities shall, within one month after havingof receiveding the non- binding opinion referred to in Article 18(4), take a fully reasoned decision granting or refusing authorisation to the applicant issuer and, and, within 5 working days, notify that decision to applicant issuers. Where an applicant issuer is authorised, its crypto-asset white paper shall be deemed to be approved.
Amendment 461 #
Proposal for a regulation
Article 23 a (new)
Article 23 a (new)
Article 23a Requirements applicable to issuers of Payment ART 1. Issuers of Payment ART are subject to the rules and requirements set out in Title IV of this Regulation unless provided otherwise in this article. 2. Payment ART shall not be deemed to be ‘electronic money’ as defined in Article 2(2) of Directive 2009/110/EC. 3. Each unit of Payment ART created shall be pledged at par value with an official currency unit of an EU member state. 4. Issuers of Payment ART shall issue Payment ART at par value and on the receipt of funds within the meaning of Article 4 (25) of Directive 2015/2366. 5. Holders of Payment ART are entitled to claim redemption at any moment and at par value, of the monetary value of the Payment ART held, either in cash or by credit transfer. 6.Redemption may not be subject to a fee. Issuers of Payment ART shall prominently state the conditions of redemption in the crypto-asset whitepaper as referred to in Article 46. 7. Where the issuer of a Payment ART token does not fulfil legitimate redemption requests from holders of Payment ART within 30 days, the holder is entitled to claim redemption to any following third party entities that has been in contractual arrangements with issuers of Payment ART:(a) entities ensuring the safeguarding of funds received by issuers of Payment ART in exchange Payment ART in accordance with Article 7 of Directive 2009/110/EC;(b) any natural or legal persons in charge of distributing e- money tokens on behalf of issuers of e- money tokens.
Amendment 508 #
Proposal for a regulation
Article 32 – paragraph 1 a (new)
Article 32 – paragraph 1 a (new)
1a. The reserve shall be composed and managed so as to cover at all times the risks associated to the claims from holders of the asset referred token.
Amendment 511 #
Proposal for a regulation
Article 32 – paragraph 5
Article 32 – paragraph 5
5. Without prejudice to Article 30(11), issuers of asset-referenced tokens shall mandate an independent audit of the reserve assets every six months, as of the date of its authorisation as referred to in Article 19. The result of the audit shall be notified to the competent authority without delay, at the latest within six weeks of the reference date of the valuation. The result of the audit shall be published within two weeks of the date of notification to the competent authority. The competent authority may instruct the issuer to delay the publication in the event that (a) the issuer has been required to implement recovery arrangement or measures in accordance with Article 41a(3); (b) the issuer has been required to implement an orderly wind-down of its activities in accordance with Article 42; (c) it is deemed necessary to protect the economic interests of holders of the asset- referenced token; (d) it is deemed necessary to avoid a significant adverse effect on the financial system of the home Member State or another Member State.
Amendment 540 #
Proposal for a regulation
Article 35 – paragraph 1
Article 35 – paragraph 1
1. Issuers of asset-referenced tokens shall establish, maintain and implement clear and detailed policies and procedurredeem these tokens at the request on the rights granted to holders of asset- referenced tokens, including any direct claim or redemption rights on the issf any holder at all times at a price that is not lower than the face valuer of those asset-referenced tokens or on the reserve assetse holder’s claim on the issuer.
Amendment 548 #
Proposal for a regulation
Article 35 – paragraph 2 – subparagraph 1 – introductory part
Article 35 – paragraph 2 – subparagraph 1 – introductory part
2. Where holdersBy way of derogation from paragraph 1: (a) the issuer of an asset- referenced tokens are granted rights as referred to in paragraph 1, itoken may, in accordance with the applicable national law and subject to the conditions set out in the crypto-asset white paper, temporarily suspend the redemption of its tokens. In the event of a temporary suspension, the issuer shall, without delay, communicate its decision to its home Member State competent authorities. (b) the issuer’s home Member State may allow its competent authorities to require the suspension of the redemption of tokens in the interest of the tokenholders or of the public. The temporary suspension referred to in point (a) of the first subparagraph shall be provided for only in exceptional cases where circumstances so require and where suspension is justified having regard to the interests of the tokenholders. Issuers of asset-referenced tokens shall establish a policy setting out:
Amendment 565 #
Proposal for a regulation
Article 35 – paragraph 2 –subparagraph 1 – point e
Article 35 – paragraph 2 –subparagraph 1 – point e
Amendment 568 #
Proposal for a regulation
Article 35 – paragraph 2 – subparagraph 2
Article 35 – paragraph 2 – subparagraph 2
Amendment 573 #
Proposal for a regulation
Article 35 – paragraph 3
Article 35 – paragraph 3
Amendment 578 #
Proposal for a regulation
Article 35 – paragraph 4
Article 35 – paragraph 4
Amendment 583 #
Proposal for a regulation
Article 35 – paragraph 4 – subparagraph 2
Article 35 – paragraph 4 – subparagraph 2
Amendment 587 #
Proposal for a regulation
Article 35 – paragraph 4 a (new)
Article 35 – paragraph 4 a (new)
4a. If issuers offer holders the possibility to acquire and redeem the token by paying in funds the sum equivalent to the market value of the assets referenced by the token, the issuer shall establish policies and procedures to: (a) Ensure a fair and transparent valuation by an independent person of the assets referenced by the assets referenced tokens; (b) adequately manage increase or decreases of the reserve to avoid any adverse impacts on the market of the assets included in the reserve. If issuers, when selling an asset -reference token, accept a payment in funds denominated in a given official currency of a country, they shall always provide the option to redeem the token in funds denominated in the same official currency.
Amendment 596 #
Proposal for a regulation
Article 35 – paragraph 5 – subparagraph 1 – point b a (new)
Article 35 – paragraph 5 – subparagraph 1 – point b a (new)
(ba) (c) the conditions which need to be met by the issuer after the adoption of the temporary suspension of the redemption of tokens as referred to in paragraph 2(a), once the suspension has been decided.
Amendment 680 #
Proposal for a regulation
Article 43 a (new)
Article 43 a (new)
Article 43a By [please insert the date 18 months after date of entry into application], EBA shall, after consulting all relevant stakeholders and reflecting all interests involved, issue guidelines in accordance with Article 16 of Regulation (EU) No 1093/2010 concerning the prudential treatment of payment ART issued by credit institutions or electronic money institutions.
Amendment 683 #
Proposal for a regulation
Article 44 – paragraph 1
Article 44 – paragraph 1
1. By derogation of Article 11 of Directive 2009/110/EC, only the following requirements regarding the issuance and redeemability of e-money tokens shall apply to issuers of e-money tokens.
Amendment 685 #
Proposal for a regulation
Article 44 – paragraph 2
Article 44 – paragraph 2
2. Holders of e-money tokens shall be provided with a claim on the issare entitled to claim redemption at any moment and at par valuer, of such e-money tokens. Any e-money token that does not provide all holders with a claim shall be prohibitedthe monetary value of thee-money tokens held, either in cash or by credit transfer.
Amendment 687 #
Proposal for a regulation
Article 44 – paragraph 4
Article 44 – paragraph 4
Amendment 691 #
Proposal for a regulation
Article 44 – paragraph 5
Article 44 – paragraph 5
5. Redemption may not be subject to a fee. Issuers of e-money tokens shall prominently state the conditions of redemption, including any fees relating thereto, in the crypto-asset white paper as referred to in Article 46.
Amendment 694 #
Proposal for a regulation
Article 44 – paragraph 6
Article 44 – paragraph 6
Amendment 696 #
Proposal for a regulation
Article 44 – paragraph 6
Article 44 – paragraph 6
6. Redemption may be subject to a fee only if stated in the crypto-asset white paper. Any such fee shall be propor and only in any of the following cases: (a) where redemption is requested before the termination of the contract; (b) where the contract provides for a termination date and commensurate with the actual costs incurred by issuers of e-money tokensthe electronic money holder terminates the contract before that date; or (c) where redemption is requested more than one year after the date of termination of the contract.
Amendment 697 #
Proposal for a regulation
Article 44 – paragraph 7 – introductory part
Article 44 – paragraph 7 – introductory part
7. Where the issuers of an e-money tokens does not fulfil legitimate redemption requests from holders of e-money tokens within the time period specified in the crypto-asset white paper and which shall not exceed 30 days, the obligation set out in paragraph 3 applie30days, the holder is entitled to claim redemption of funds to any following third party entities that has been in contractual arrangements with issuers of e- money tokens:
Amendment 761 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 1
Article 53 – paragraph 1 – subparagraph 1
1. Crypto-asset services shall only be provided by legal persons that have a registered office in a Member State of the Union and that have beean authorised as crypto-asation which allows them to provide thoset service providers in accordance with Article 553a.
Amendment 763 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 1
Article 53 – paragraph 1 – subparagraph 1
1. Crypto-asset services shall only be provided by legal persons that have a registered office in a Member State of the Union and that have been authorised as crypto-asset service providers in accordance with Article 55.The ESMA shall require significant crypto-asset service providers who intend to provide crypto-asset services, to obtain authorisation before commencing the provision of crypto-asset services. ESMA shall ensure the supervision of the significant CASP in close cooperation with the competent authority of the home Member State. ESMA shall develop draft regulatory technical standards to determine the criteria to be taken account when assessing the significance of a CASP.
Amendment 789 #
Proposal for a regulation
Article 54 – paragraph 2 – point g
Article 54 – paragraph 2 – point g
(g) proof that the natural persons involved in the management body of the applicant crypto-asset service provider collectively possess sufficientare of good repute and possess appropriate knowledge, skills and experience to manage that provider and that those natural persons are required to commit sufficient time to the performance of their duties;
Amendment 798 #
Proposal for a regulation
Article 54 – paragraph 2 – point m
Article 54 – paragraph 2 – point m
(m) where the applicant crypto-asset service provider intends to operate a trading platform for crypto-assets, a description of the procedure and system to detect market abuse.
Amendment 804 #
Proposal for a regulation
Article 54 – paragraph 2 – point p
Article 54 – paragraph 2 – point p
(p) where the applicant crypto-asset service provider intends to exchange crypto-assets for fiat currency or crypto- assets for other crypto-assets, a description of the non-discriminatory commercial policy governing the relationship with clients, including a description of the methodology for determining the price of the crypto-assets they propose for exchange against funds or other crypto- assets;
Amendment 808 #
Proposal for a regulation
Article 54 – paragraph 2 – point r a (new)
Article 54 – paragraph 2 – point r a (new)
Amendment 823 #
Proposal for a regulation
Article 55 – paragraph 5 – subparagraph 2 – point a
Article 55 – paragraph 5 – subparagraph 2 – point a
(a) the management body of the applicant crypto-asset service provider poses a threat to its effective, sound and prudent management and business continuity, and to the adequate consideration of the interest of its clients and the integrity of the market;
Amendment 824 #
Proposal for a regulation
Article 55 – paragraph 5 – subparagraph 2 – point a a (new)
Article 55 – paragraph 5 – subparagraph 2 – point a a (new)
(aa) the shareholders or members that have qualifying holdings are not deemed suitable, taking into account the need to ensure the sound and prudent management of the crypto-asset service provider;
Amendment 826 #
Proposal for a regulation
Article 55 – paragraph 6
Article 55 – paragraph 6
6. Competent authorities shall inform ESMA of all authorisations granted under this Article. ESMA shall add all the information submitted in successful applications to the register of authorised crypto-asset service providers provided for in Article57. ESMA may request information in order to ensure that competent authorities grant authorisations under this Article in a consistent mannerin accordance with inArticle57.
Amendment 837 #
Proposal for a regulation
Article 56 a (new)
Article 56 a (new)
Article 56a Provision of crypto-asset services at the exclusive initiative of the client 1. Where a client established or situated in the Union initiates at its own exclusive initiative the provision of a crypto-asset service [or activity] by a third-country firm, the requirement for authorisation under Article 53 shall not apply to the provision of that service [or activity] by the third country firm to that person including a relationship specifically relating to the provision of that service or activity. Without prejudice to intragroup relations, where a third‐country firm, including through an entity acting on its behalf or having close links with such third‐country firm or any other person acting on behalf of such entity, solicits clients or potential clients in the Union, regardless of the means of communication used for solicitation, promotion or advertising in the Union, it shall not be deemed to be a service provided at the own exclusive initiative of the client. The presumption of the second subparagraph shall apply regardless of any contractual clause or disclaimer purporting to state, for example, that the third country firm will be deemed to respond to the exclusive initiative of the client. 2. An initiative by a client as referred to in paragraph 1 shall not entitle the third‐country firm to market new categories of crypto-asset services.
Amendment 858 #
Proposal for a regulation
Article 60 – paragraph 4 – introductory part
Article 60 – paragraph 4 – introductory part
4. The insurance policy referred to in paragraph 2 shall be disclosed to the public through the crypto-asset service provider’s website and shall have at least all of the following characteristics:
Amendment 875 #
Proposal for a regulation
Article 61 – paragraph 7 – subparagraph 1
Article 61 – paragraph 7 – subparagraph 1
7. Crypto-asset service providers shall have internal control mechanisms and effective procedures for risk assessment, including effective control and safeguard arrangements for managing ICT systems in accordance with Regulationmechanisms, systems and effective procedures in accordance with Regulation (EU) 2021/xx of the European Parliament and of the Council as well as effective procedures for risk assessment to comply with the obligations in relation to money laundering and terrorist financing under Directive (EU) 2021/xx15/849 of the European Parliament and of the Council.65 They shall monitor and, on a regular basis, evaluate the adequacy and effectiveness of internal control mechanisms and procedures for risk assessment and take appropriate measures to address any deficiencies. _________________ 65 Proposal for a Regulation of the European Parliament and the Council on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014 and (EU) No 909/2014 - COM(2020)595.
Amendment 877 #
Proposal for a regulation
Article 61 – paragraph 8 a (new)
Article 61 – paragraph 8 a (new)
8a. The records kept in accordance with this paragraph shall be provided to the client involved upon request and shall be kept for a period of five years and, where requested by the competent authority, for a period of up to seven years.
Amendment 888 #
Proposal for a regulation
Article 63 – paragraph 1
Article 63 – paragraph 1
1. Crypto-asset service providers that hold crypto-assets belonging to clients or the means of access to such crypto-assets shall make adequate arrangements to safeguard the ownership rights of clients, especially in the event of the crypto-asset service provider’s insolvency, and to prevent the use of a client’s crypto-assets onfor their own account except with the client’s express consent.
Amendment 889 #
Proposal for a regulation
Article 63 – paragraph 2
Article 63 – paragraph 2
2. Where their business models or the crypto-asset services require holding clients’ funds other than e-money tokens, crypto-asset service providers shall have adequate arrangements in place to safeguard the rights of clients and prevent the use of clients’ funds, as defined under Article 4(25) of Directive (EU) 2015/236667 , for their own account. _________________ 67Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJL 33, 23.12.2015, p.35) for their own account.
Amendment 890 #
Proposal for a regulation
Article 63 – paragraph 3 – subparagraph 1
Article 63 – paragraph 3 – subparagraph 1
3. Crypto-asset service providers shall, promptly place anyby the end of the business day following the day the funds other than e- money tokens have been received, place such client’s funds, with a central bank, where available, or a credit institution. Crypto-asset service providers shall take all necessary steps to ensure that the client’s’ funds, other than e-money tokens held with a central bank or a credit institution are held in an account or accounts separately identifiable from any accounts used to hold funds belonging to the crypto-asset service provider.
Amendment 905 #
Proposal for a regulation
Article 67 – paragraph 2
Article 67 – paragraph 2
2. Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall do its utmost to facilitate the exercise of the rights attached to the crypto-assets. They shall keep a register of positions, opened in the name of each client, corresponding to each client’s rights to the crypto-assets. Crypto-asset service providers shall record as soon as possible, in that register any movements following instructions from their clients. Their internal procedures shall ensure that any movement affecting the registration of the crypto-assets is evidenced by a transaction regularly registered in the client’s position register. The organisational choice relating to the service of custody such as the use of a multi-signature solution, is the responsibility of the custodian of crypto-assets. As a result, the fact that the movements on the customer's account are secured by the use of the multi-signature process is not such as to call into question the qualification of the custody service.
Amendment 906 #
Proposal for a regulation
Article 67 – paragraph 3 – subparagraph 2
Article 67 – paragraph 3 – subparagraph 2
Those rules and procedures shall ensure that the crypto-asset service provider cannot lose clients’ crypto-assets or the rights related to those assets or the means of access to the crypto-assets due to frauds, cyber threats or negligence.
Amendment 907 #
Proposal for a regulation
Article 67 – paragraph 3 a (new)
Article 67 – paragraph 3 a (new)
3a. The custody policy and a summary must be made available to clients on their request in a durable medium.
Amendment 908 #
Proposal for a regulation
Article 67 – paragraph 4 a (new)
Article 67 – paragraph 4 a (new)
4a. In case of forks or other changes to the underlying distributed ledger technology, or any other event likely to create or modify the client’s rights, the client shall be entitled to any crypto-assets or any rights newly created on the basis and to the extent of the client's positions at the time of the event's occurrence by such change, except when a valid agreement signed with the custodian pursuant to paragraph 1 prior to the event explicitly provides otherwise.
Amendment 909 #
Proposal for a regulation
Article 67 – paragraph 6
Article 67 – paragraph 6
6. Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall ensure that necessary procedures are in place to return crypto- assets held on behalf of their clients or the means of access to those crypto-assets are returned as soon as possible to those as soon as possible to those clients. When it is impossible to return the crypto-asset or the control over the means of access of those crypto-assets and except in the case of events not directly or indirectly attributable to the crypto-assets services provider, the crypto- assets custodian shall compensate its clients.
Amendment 910 #
Proposal for a regulation
Article 67 – paragraph 7
Article 67 – paragraph 7
7. Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall segregate holdings of crypto-assets on behalf of their clients from their own holdings and ensure that the means of access to crypto assets from their clients are clearly identified as such. They shall ensure that, on the DLT, their clients’ crypto-assets are held on separate addresses from those on which their own crypto-assets are held.
Amendment 912 #
Proposal for a regulation
Article 67 – paragraph 8
Article 67 – paragraph 8
8. Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall be held liable to their clients for the loss of crypto-assets or of the means of access to the crypto-assets as a resulting from a malfunction or hacks that are attributed to the provision of the relevant service and the operation of the service provider. The liability of the crypto-asset service provider shall be up to the market value of the crypto-assets lost.
Amendment 914 #
Proposal for a regulation
Article 67 – paragraph 8 a (new)
Article 67 – paragraph 8 a (new)
8a. If crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties make use of other providers for the custody and administration of the crypto-assets they hold on behalf of third parties, they shall only make use of crypto-asset service providers authorised in accordance with Art 53.Crypto-asset service providers that are authorised to hold and administer crypto-assets on behalf of third parties and that make use of other providers for the custody and administration of crypto- assets shall inform their customers thereof.
Amendment 916 #
Proposal for a regulation
Article 68 – paragraph 1 – subparagraph 1 – point h a (new)
Article 68 – paragraph 1 – subparagraph 1 – point h a (new)
(ha) (i) set transparent and non- discriminatory rules, based on objective criteria, governing access to its facility.
Amendment 923 #
Proposal for a regulation
Article 68 – paragraph 4 – point e a (new)
Article 68 – paragraph 4 – point e a (new)
(ea) prevent and detect insider dealing, market manipulation and attempted insider dealing and market manipulation.
Amendment 928 #
Proposal for a regulation
Article 68 – paragraph 10 a (new)
Article 68 – paragraph 10 a (new)
10a. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets whose annual revenue is above a threshold set by the ESMA shall report complete and accurate details of transactions in crypto- assets traded on its platform to the competent authority as quickly as possible, and no later than the close of the following working day.
Amendment 930 #
10b. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets whose annual revenue is below the threshold mentioned in paragraph 11 shall keep at the disposal of the competent authority, for at least five years, complete and accurate details of transactions in crypto- assets traded on its platform.
Amendment 932 #
Proposal for a regulation
Article 68 – paragraph 10 c (new)
Article 68 – paragraph 10 c (new)
10c. Crypto-asset service providers that are authorised for the operation of a trading platform for crypto-assets shall keep at the disposal of the competent authority, for at least five years, the relevant data relating to all orders in crypto-assets which are advertised through their systems. The records shall contain the relevant data that constitute the characteristics of the order, including those that link an order with the executed transaction(s) that stems from that order and the details of which shall be reported or kept at the disposal of the competent authority in accordance with paragraphs 11 and 12.
Amendment 937 #
Proposal for a regulation
Article 70 – paragraph 1
Article 70 – paragraph 1
1. Crypto-asset service providers that are authorised to execute orders for crypto- assets on behalf of third parties shall take all necessary steps to obtain, when executing orders, the best possible result for their clients taking into account the best execution factors of price, costs, speed, likelihood of execution and settlement, size, nature or any other consideration relevant to the execution of the order, unless the crypto-asset service provider concerned executes orders for crypto-assets following specific instructions given by its clients. Where a crypto-asset service provider executes an order on behalf of a retail client, the best possible result shall be determined in terms of the total consideration, representing the price of the crypto-assets and the costs relating to execution, which shall include all expenses incurred by the client which are directly relating to the execution of the order, including execution venue fees, clearing and settlement fees and any other fees paid to third parties involved in the execution of the order.
Amendment 941 #
Proposal for a regulation
Article 70 – paragraph 3 a (new)
Article 70 – paragraph 3 a (new)
3a. Crypto-asset service providers that are authorised to execute orders for crypto-assets on behalf of third parties shall ask the client or potential client to provide information regarding that person’s knowledge and experience in crypto-assets, the client’s objectives, risk tolerance, financial situation including the ability to bear losses, and basic understanding of risks involved in purchasing crypto-assets so as to enable the crypto-asset service provider to assess whether the crypto-asset envisaged is appropriate for the client. Where the crypto-asset service provider considers, on the basis of the information received under the first subparagraph, that the crypto-asset is not appropriate to the client or potential client, it shall warn the client or potential client.
Amendment 942 #
Proposal for a regulation
Article 70 a (new)
Article 70 a (new)
Article 70a 4. Crypto-asset service providers that are authorised to execute orders for crypto- assets on behalf of third parties shall monitor the effectiveness of their order execution arrangements and execution policy in order to identify and, where appropriate, correct any deficiencies. In particular, they shall assess, on a regular basis, whether the execution venues included in the order execution policy provide for the best possible result for the client or whether they need to make changes to their execution arrangements. Member States shall require crypto-asset service providers to notify clients with whom they have an ongoing client relationship of any material changes to their order execution arrangements or execution policy.
Amendment 944 #
Proposal for a regulation
Article 71 – paragraph 2 a (new)
Article 71 – paragraph 2 a (new)
2a. (c) incentives paid by the issuer to the crypto-asset service provider.
Amendment 949 #
Proposal for a regulation
Article 73 – paragraph 1
Article 73 – paragraph 1
1. Crypto-asset service providers that are authorised to provide advice on crypto- assets shall assess the compatibility of such crypto-assets with the needs of the clients and recommend them only when this is in the interest of the clientrequirements and preferences of the client or potential client and recommend them only when they are suitable for the client or potential client and, in particular, are in accordance with his or her risk tolerance and ability to bear losses.
Amendment 951 #
Proposal for a regulation
Article 73 – paragraph 1 a (new)
Article 73 – paragraph 1 a (new)
1a. Crypto-asset service providers that are authorised to provide advice on crypto-assets shall in good time before providing advice on crypto-assets inform potential clients: (a) whether or not the advice is provided on an independent basis; (b) whether the advice is based on a broad or on a more restricted analysis of different crypto-assets and, in particular, whether the range is limited to crypto- assets issued or offered by entities having close links with the crypto-asset service provider or any other legal or economic relationships, such as contractual relationships, so close as to pose a risk of impairing the independent basis of the advice provided; Crypto-asset service providers shall also provide potential clients with information on all costs and associated charges, including the cost of advice, where relevant, the cost of crypto-assets recommended or marketed to the client and how the client may pay for it, also encompassing any third-party payments.
Amendment 955 #
Proposal for a regulation
Article 73 – paragraph 3 – subparagraph 1
Article 73 – paragraph 3 – subparagraph 1
3. For the purposes of the assessment referred to in paragraph 1, crypto-asset service providers that are authorised to provide advice on crypto-assets shall request information about the client or prospectiveotential client’s knowledge of, and experience in crypto-assets, the clients' objectives, financial situation including risk tolerance, financial situation including the ability to bear losses, and a basic understanding of risks involved in purchasing crypto-assets. Crypto-asset service providers that are authorised to provide advice on crypto-assets shall warn clients that, due to their nature, (a) the crypto-assets may lose their value in part or in full; (b) the crypto-assets may not always be transferable; (c) the crypto-assets may not be liquid; (d) the value of crypto-assets may fluctuate; (e) where applicable, public protection schemes protecting the value of crypto assets and public compensation schemes do not exist and crypto-assets are not covered by public investor compensation or deposit guarantee schemes.
Amendment 996 #
Proposal for a regulation
Article 82 – paragraph 1 – subparagraph 1 – point j a (new)
Article 82 – paragraph 1 – subparagraph 1 – point j a (new)
(ja) make public the fact that an Investment ART is increasingly or regularly used as a means of payment.
Amendment 997 #
Proposal for a regulation
Article 82 – paragraph 1 – subparagraph 1 – point j b (new)
Article 82 – paragraph 1 – subparagraph 1 – point j b (new)
(jb) to prohibit all regulated entities the acceptance and any services related to investment ART, where they find that given Investment ART is regularly used as a means of payment.
Amendment 1007 #
Proposal for a regulation
Article 83 a (new)
Article 83 a (new)
Article 83a Request for re-assessment 1. Competent authorities of host Member States may at any time present a reasoned opinion and request the competent authority of the home Member State to re-assess its decision that the issuer of an ART has refuted the presumption set out in Art. 16a Para. 1. 2. The competent authority of the home Member State shall, within 2 months from the receipt of a request for re-assessment, present a reasoned opinion and inform EBA, ESMA, the ECB and all competent authorities of host Member State whether it intends to change its decision that the issuer of an ART has refuted the presumption set out in Art. 16a Para. 1. 3. Where the competent authority of the home Member State presents no reasoned opinion or intends not to change its decision, the competent authority of the host Member State may, within 1 month, refer the matter to the ECB to issue a binding opinion. 4. The ECB issues a binding opinion as to whether the issuer of an ART has refuted the presumption set out in Art. 16a Para. 1 and transmits its opinion to the competent authorities concerned, to EBA and to ESMA. 5. Where applicable, the competent authority of the home Member State takes appropriate supervisory action.