The EBA’s comments on the upcoming MiCAR review

On 24 September 2026, the European Banking Authority published its response to the European Commission's targeted consultation on the review of Regulation (EU) 2023/1114 (MiCAR). While the response is non-binding, it will likely carry significant weight as the EBA supervises significant ARTs and EMTs, drafted most of the Title III and IV Level 2 framework, and has two years of supervisory convergence work behind it. This input gives a clear view of where the EBA stands on MiCAR 2.0. 

Scope: retain focus on crypto-assets 

One significant development in this field is tokenized finance. Much has been written about this before, but, so far, there is no clear framework. The big question is then whether we will see tokenized assets incorporated into MiCAR. The EBA, however, firmly opposes to bring tokenized financial instruments within the scope of MiCAR. It wants to retain the exclusion of Article 2(4)(a) and invokes technological neutrality and the "same risk, same rule" principle. The prudential argument is fairly straightforward concrete: under the CRR a bank's exposure to a tokenized traditional asset is treated as an exposure to the underlying asset. If tokenized securities stopped being financial instruments, this approach would collapse. That would also have consequences for the scope of existing authorizations and the eligibility as financial collateral. 

The EBA's more fundamental point is that guidelines alone cannot fix what the Level 1 text has left unharmonized. Neither "financial instrument" nor "deposit" have fully harmonized EU definitions. A token may, therefore, qualify as a financial instrument in one Member State and as an ART in another. The EBA calls for legislative harmonization of both concepts at the earliest opportunity. On deposits in particular, it notes that Article 3(1)(50) MiCAR defines "deposit" by reference to the DGSD. That definition works by exclusion and has no bearing on the CRD/CRR perimeter, and neither does the CRR itself define the term. 

Classification issues under MiCAR itself 

The EBA is candid that the ART and EMT definitions in Article 3(1)(6) and (7) are difficult to apply in practice. Mainly the phrase "purports to maintain a stable value" appears to be causing difficulty. The same can be said about the gap between the referenced asset and the reserve composition under Article 36. The EBA gives an overview of a number of problem cases. These include tokens referencing only shares in a single-currency MMF, pools engineered to track a single currency but redeemable only in pool assets, tokens referencing mainly a financial instrument with a marginal fiat component (which may also circumvent the interest prohibition in Article 40), tokens referencing EMTs, and wrapped tokens mirroring an unauthorized fiat-referenced token from another chain. Gold tokens are singled out as particularly difficult, often because white papers poorly describe tokenholder entitlements. 

The EBA also reports actual arbitrage attempts. It has observed structures dressed up as ARTs to escape the stricter regimes for EMTs and financial instruments. It adds that the market remains unsure whether classification turns on the issuer's representations, on the stabilization mechanisms embedded in the design, or on observed secondary market price behavior. That uncertainty is a real gap in legal certainty which the Commission is asked to address by legislative amendment or interpretative guidance. 

The most striking remark comes in the answer to Q13. Since the likely use of ARTs is investment rather than payment, the EBA suggests the Commission consider whether the ART is "essentially a redundant category" that should be absorbed into the concept of financial instrument. While this is a policy suggestion, it nonetheless signals that the Title III regime may not survive the review in its current form. 

Prudential and reserve requirements 

Regarding the own funds requirement, the EBA finds the Article 35 calculation methods to be mostly relevant and appropriately calibrated. It asks the Commission to clarify whether MiCAR requirements apply cumulatively or commensurately where an entity is also a CASP, PI or EMI. That question often pops up in practice EMIs issuing EMTs. The EBA also proposes a risk-based calculation method and a broader Article 35(3) power for NCAs, since CASPs lending from their own balance sheet or investing on own account carry credit, market and leverage risk that MiCAR currently does not capture. 

Regarding the reserve requirement, the EBA shows some leniency to reducing the 30% and 60% minimum deposit requirement under the Article 36(4) RTS, given bank-issuer interconnectedness. That leniency would be conditional on non-deposit reserve assets remaining genuinely liquid. It repeats its October 2025 objections to the Commission's proposed amendments to the Article 36(4) and 38(5) RTS, which in its view would water down reserve quality and depart from the CRD/CRR notion of liquid financial instruments. It also suggests defining the reserve framework exclusively in MiCAR rather than partly through the EMD. 

For credit institution issuers, the EBA wants no change to Article 58. No reserve or segregation requirement should be imposed, since LCR and NSFR already apply and segregation would create LCR double-counting problems. It does float a supervisory discretion to require that large EMT activity be carried out through an EMI subsidiary.

Redemption, significance and interest 

The permanent redemption right and the fee prohibition should stay, according to the EBA. It does want a maximum redemption timeframe in business-as-usual conditions, given divergent market practice (T+1 to T+4). It also wants vigilance on "back door" fees and harmonized templates for redemption policies. On significance, it proposes a new Article 43(1) criterion on participation in multi-issuance schemes, replacing "and" with "or" in point (c), and a legislative definition of "EU holder" and "held in the EU". The interest prohibition for ARTs and EMTs should remain. 

Multi-issuance: the central concern 

The multi-issuance section is the most consequential part of the response. The EBA notes that MiCAR does not address third-country multi-issuer schemes and that Q&As 2024_7068 and 2024_7069 on their permissibility remain unanswered by the Commission. Two EMIs currently participate in such schemes. The EBA rates every existing MiCAR safeguard, from the Article 16 establishment requirement to the intervention powers in Articles 94, 104 and 105, as only "slightly effective" in this context. If such schemes are permissible, the EBA wants a dedicated regime along the lines of ESRB Recommendation ESRB/2025/9. That would include a prior supervisory non-objection before existing CIs or EMIs begin issuance, elimination of economic incentives to redeem in the EU, mandatory supervisory cooperation, possibly higher own funds, and an equivalence regime serving as a baseline for market access subject to strict reciprocity. The EBA also criticizes the Article 48(1) route, under which an existing EMI can start issuing an EMT with only 20 working days' white paper notification. 

PSD3/PSR interplay 

Working from the April 2026 trilogue compromise texts, the EBA welcomes the clarifications while noting that double authorization remains. It flags two problems. The new Article 60(4a) MiCAR lets PIs provide certain EMT-related crypto-asset services by notification, which creates an asymmetry with CASPs. And Article 70(5) MiCAR may leave client funds linked to non-payment crypto-asset services outside both the MiCAR safekeeping and PSD3 safeguarding regimes. 

Lending, borrowing and tokenized deposits 

The EBA wants crypto-asset lending and borrowing regulated. It would add intermediation as a CASP service and set rules for CASPs facilitating DeFi access, including suitability tests, leverage limits, a ban on facilitating lending in unauthorized ARTs/EMTs, and a certification regime for DeFi protocols. It notes that one of the two dominant stablecoins in this market is not authorized under MiCAR. On tokenized deposits, excluded under Article 2(4)(b), it distinguishes native tokens (usually deposits) from non-native ones (requiring case-by-case assessment) and repeats its call for an EU definition of deposit. 

Takeaways 

Overall, three points stand out. First, classification opinions will remain contested, and structures relying on ARTs should be stress-tested against the EBA's arbitrage concerns. Second, EMIs participating in third-country multi-issuer schemes should expect materially heavier requirements. Third, the cumulative application of capital requirements for multi-licensed entities is openly acknowledged as unresolved, which supports arguments for proportionate treatment pending the review.