Art. 2 Criteria and factors for the purposes of the EBA temporary intervention powers | Intervention powers of authorities | MiCA

The EBA shall take into account the following factors and criteria to determine whether there is a significant investor protection concern or a threat to the orderly functioning and integrity of markets in crypto-assetsmeans a digital representation of a value or of a right that is able to be transferred and stored electronically using distributed ledger technology or similar technology; or to the stability of the whole or part of the financial system in the Union:

the degree of complexity of the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or the type of activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens in relation to the type of clientsmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services;, as assessed in accordance with point (c), involved in the activity, or practice, taking into account, in particular, the following:
1. the degree of transparency of costs and charges associated with the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token, the activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens and, in particular, the lack of transparency resulting from multiple layers of costs and charges;
2. the nature and scale of any risks;
3. the size and the composition of the reserve of assetsmeans the basket of reserve assets securing the claim against the issuer; referred to in Article 36 of Regulation (EU) 2023/1114;
4. whether the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or service is bundled with other products or linked to different services;
5. the complexity of any terms and conditions;
the size of potential detrimental effects, considering, in particular, the following:
1. the reference value of the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token;
2. the number of clientsmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services;, token holders or market participants involved;
3. the relative share of the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token in investors’ portfolios;
4. the probability, scale and nature of any detriment, including the amount of loss potentially suffered;
5. the anticipated duration of the detrimental consequences;
6. the volume of the issuance;
7. the number of intermediaries involved;
8. the growth of the market or sales;
9. the average amount invested by each clientmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services; in the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token;
the type of clientsmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services; involved in an activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens or to whom an asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token is marketed or sold, taking into account, in particular, the following:
1. whether the clientmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services; is a retail holdermeans any natural person who is acting for purposes which are outside that person’s trade, business, craft or profession; or a qualified investor;
2. clientsmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services;’ skills and abilities, including the level of education, experience with similar products or selling practices;
3. clientsmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services;’ economic situation, including their income and wealth;
4. clientsmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services;’ core financial objectives, including pension saving and home ownership financing;
the degree of transparency of the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or the type of activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens, taking into account, in particular, the following:
1. any hidden costs and charges;
2. the use of techniques drawing clientsmeans any natural or legal person to whom a crypto-asset service provider provides crypto-asset services;’ attention but not necessarily reflecting the suitability or overall quality of the product or service;
3. the nature of risks and transparency of risks;
4. the use of product names or terminology or other information that is misleading by implying a greater level of security or return than those which are actually possible or likely, or which imply product features that do not exist;
5. the use of unfair, unclear or misleading information in communications;
the particular features or components of the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or the activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens;
the existence and degree of disparity between the expected return or profit for investors and the risk of loss in relation to the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or the activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens, taking into account, in particular, the following:
1. the structuring costs of such asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies;, e-money tokens, activity or practice and other costs;
2. the disparity in relation to the issuermeans a natural or legal person, or other undertaking, who issues crypto-assets;’s risk retained by the issuermeans a natural or legal person, or other undertaking, who issues crypto-assets;;
3. the risk/return profile or risk/benefit profile;
the costs and ease with which investors are able to sell the relevant asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or switch to another asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token, taking into account, in particular, the following:
1. the degree of liquidity in the market for the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token;
2. the frequency of trading availability;
3. the issuance size and size of the secondary market;
4. the presence or absence of liquidity providers or secondary market makers;
5. the features of the trading system;
6. any other barriers to exit;
the pricing and associated costs of the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or the activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens, taking into account, in particular, either of the following:
1. the use of hidden or secondary charges;
2. charges that do not reflect the level of service provided;
the selling practices associated with the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token, taking into account, in particular, the following:
1. the communication and distribution channels used;
2. the information, marketing or other promotional material associated with the investment;
3. the assumed investment purposes;
4. whether the decision to buy is a secondary or tertiary following an earlier purchase;
the financial and business situation of the issuermeans a natural or legal person, or other undertaking, who issues crypto-assets; or of the provider of services of an asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token, taking into account, in particular, either of the following:
1. the financial situation of the issuermeans a natural or legal person, or other undertaking, who issues crypto-assets; or of the provider of services related to the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token;
2. the transparency of the business situation of the issuermeans a natural or legal person, or other undertaking, who issues crypto-assets; or of the provider of services related to the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token;
whether there is insufficient or unreliable information about an asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token, provided either by the issuermeans a natural or legal person, or other undertaking, who issues crypto-assets; or the offerormeans a natural or legal person, or other undertaking, or the issuer, who offers crypto-assets to the public; or service provider, to enable market participants at whom it is targeted to make an informed decision, taking into account the nature and type of the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token;
whether the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or the activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens poses a high risk to the performance of transactions entered into by participants or investors in the relevant market;
whether the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or the activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens would leave the Union economy vulnerable to risks;
whether the characteristics of an asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token make it particularly susceptible to being used for the purposes of financial crime and, in particular whether those characteristics could potentially encourage the use of asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens for the following:
1. any fraud or dishonesty;
2. misconduct in, or misuse of information, in relation to a financial market;
3. handling the proceeds of crime;
4. the financing of terrorism;
5. facilitating money laundering;
whether the activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens poses a particularly high risk to the resilience or smooth operation of markets, the payment system and their infrastructures;
whether the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or the activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens poses a high risk of disruption to financial institutions deemed to be important to the financial system of the Union;
the relevance of the distribution of the asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token as a funding source for the issuermeans a natural or legal person, or other undertaking, who issues crypto-assets;;
whether an asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money token or an activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens poses risks to the market or payment systems infrastructure;
whether an asset-referenced tokenmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or an activity or practice related to asset-referenced tokensmeans a type of crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right or a combination thereof, including one or more official currencies; or e-money tokens could threaten investors’ confidence in the financial system.