Interplay between MiCA and PSD2 for transfers of electronic money tokens – EBA No Action Letter on authorisation requirements and applicable rules

On 10 June EBA has issued a “No Action Letter” to clarify the interplay between MiCA¹ and PSD2², in relation to crypto asset service providers (CASPs) that transact electronic money tokens (EMTs) as there are overlaps between the two regimes. This relates in particular to the necessity to have an authorisation under both regimes and to the rules applicable to such transfers, as EMTs not only qualify as crypto assets but also as electronic money.

Purpose of the No Action Letter

In this No Action Letter, EBA makes proposals to the European legislators as to how the issue can be resolved in the long term. It suggests to make use of the ongoing legislative process of PSD3 and the future Payment Services Regulation (PSR) to

• either amend and strengthen the MiCA provisions applicable to CASPs providing payment services with regard to EMTs so that they are materially aligned to PSD3/PSR in this respect or, if this is not feasible,
• to take the alternative of retaining services with EMTs qualifying as payment services within the scope of the new PSD3/PSR³.

EBA also gives advice to NCAs for the intervening period of 2-3 years during which PSD2 still applies, by setting out

• which types of EMT transactions are not to be regarded as payment services and for which CASPs will not require an additional authorisation under PSD2, and
• with regard to those EMT transactions which are considered as payment services and for which an additional authorisation under PSD2 is currently required, how to supervise specific PSD2 provisions. In this context, EBA also clarified which PSD2 provisions should be de-prioritised by NCAs when exercising their supervisory powers.
• that NCAs are advised to grant a transition period until 1 March 2026 for CASPs requiring authorisation under PSD2, before such authorisation as Payment Institution (PI) or Electronic Money Institution (EMI) needs to be held.

Guidance on PSD2 licence requirements

The No Action Letter gives additional guidance as to which payment services may be conducted if a CASP offers services regarding EMT. In particular, the following activities are considered to be regulated payment services requiring authorisation under PSD2:

• the “transfer of crypto assets” (defined under Art. 3 para 1, point 26 of MiCA), where such transfer (i) entails EMTs, and (ii) is offered and carried out by the entities on behalf of their clients;
• the custody and administration of EMTs. Also, the custodial wallet shall be considered as a payment account under the PSD2, where they allow to send and receive transfers of EMTs to and from third parties.

Furthermore, EBA gives advice that the following activities shall not be considered as payment services and thus licensable under PSD2:

• “exchange of crypto-assets for funds” and “exchange of crypto-assets for other crypto-assets”.
• intermediation by CASPs of the purchase of any crypto assets with EMTs.

EBA also advises not to prioritise the supervision and enforcement of the provisions of Directive 2014/92/EU (the Payment Accounts Directive, PAD) in relation to custodial wallets.

Guidance on authorisation

Procedure: In case a CASP requires an authorisation as PI or EMI, EBA provides advice how NCAs shall assess the application in order to streamline and simplify the process. In particular, EBA emphasised that NCAs should make use of information submitted for the CASP authorisation under MiCA to the greatest extent possible for the authorisation process under PSD2. From our experience...