Art. 103 ESMA temporary intervention powers | MiCA regulation | MiCA

This article grants ESMA the power to temporarily prohibit or restrict the marketing, distribution, or sale of certain crypto-assets (excluding asset-referenced tokens and e-money tokens, which fall under the parallel Article 104 covering EBA's equivalent powers) or related activities and practices.

The power is conditional — ESMA can only act where there is a significant investor protection concern or a threat to market integrity or financial stability, existing Union law does not adequately address the threat, and national competent authorities have either not acted or have acted insufficiently.

The article also sets out procedural requirements around notification, publication, review, and the supremacy of ESMA's measures over those of national competent authorities on the same matter.

Important points:

ESMA has the power to temporarily prohibit or restrict certain crypto-asset marketing, distribution, sale, or related practices, but only where three cumulative conditions are all met.
ESMA's measures take precedence over any prior measures taken by national competent authorities on the same matter.
The Commission is required to adopt delegated acts specifying the criteria and factors ESMA must use when assessing whether the conditions for intervention are met.

1. In accordance with Article 9(5) of Regulation (EU) No 1095/2010, ESMA may, where the conditions in paragraphs 2 and 3 of this Article are fulfilled, temporarily prohibit or restrict:
  1. the marketing, distribution or sale of certain crypto-assets other than asset-referenced tokens or e-money tokens or crypto-assets other than asset-referenced tokens or e-money tokens with certain specified features; or
  2. a type of activity or practice related to crypto-assets other than asset-referenced tokens or e-money tokens.
2. A prohibition or restriction may apply in certain circumstances, or be subject to exceptions, specified by ESMA.
1. ESMA shall take a measure pursuant to paragraph 1 only if all of the following conditions are fulfilled:
  1. the proposed prohibition or restriction addresses a significant investor protection concern or a threat to the orderly functioning and integrity of markets in crypto-assets or to the stability of the whole or part of the financial system in the Union;
  2. the regulatory requirements under Union law that are applicable to the relevant crypto-assets and crypto-asset services do not address the threat at issue;
  3. a relevant competent authority has not taken action to address the threat at issue or the actions that have been taken do not adequately address that threat.
1. When taking a measure pursuant to paragraph 1, ESMA shall ensure that the measure does not:
  1. have a detrimental effect on the efficiency of markets in crypto-assets or on holders of crypto-assets or clients receiving crypto-asset services that is disproportionate to the benefits of the measure; and
  2. create a risk of regulatory arbitrage.
2. Where competent authorities have taken a measure pursuant to Article 105, ESMA may take any of the measures referred to in paragraph 1 of this Article without issuing an opinion pursuant to Article 106(2).
1. Before deciding to take a measure pursuant to paragraph 1, ESMA shall notify the relevant competent authorities of the measure it intends to take.
1. ESMA shall publish on its website a notice of a decision to take a measure pursuant to paragraph 1. That notice shall specify the details of the prohibition or restriction imposed and specify a time after the publication of the notice from which the measures will take effect. A prohibition or restriction shall only apply to activities after the measure has taken effect.
1. ESMA shall review a prohibition or restriction imposed pursuant to paragraph 1 at appropriate intervals, and at least every six months. Following at least two consecutive renewals and based on a proper analysis assessing the impact on consumers, ESMA may decide on the annual renewal of the prohibition or restriction.
1. Measures taken by ESMA pursuant to this Article shall prevail over any previous measure taken by the relevant competent authorities on the same matter.
1. The Commission shall adopt delegated acts in accordance with Article 139 to supplement this Regulation by specifying the criteria and factors to be taken into account by ESMA in determining whether there is a significant investor protection concern or a threat to the orderly functioning and integrity of markets in crypto-assets or to the stability of the whole or part of the financial system of the Union for the purposes of paragraph 2, point (a), of this Article.