Art. 2 Conflicts of interest potentially detrimental to the issuer of asset-referenced tokens | RTS on issuer conflicts of interest | MiCA

This article provides the substantive content that issuers of asset-referenced tokens must capture within the conflict of interest policies and procedures required under Article 32(1) of MiCA (Regulation (EU) 2023/1114).

It maps out, in considerable detail, the specific situations and relationships involving connected persons that must be assessed when identifying conflicts detrimental to the issuer itself.

Beyond identifying those triggering circumstances, the article also imposes a heightened scrutiny requirement on token exchange and redemption transactions where the issuer is a party and the transaction is conducted on behalf of insiders — such as management body members, their close relatives, or entities in which they hold significant stakes.

Important points:

Identify and address all circumstances where a connected person's objectivity may be compromised, including economic interests, competing activities, hierarchical supervision by conflicting parties, and personal or professional relationships going back up to 3 years.
Assess whether conflicting third parties stand to make a financial gain at the issuer's expense, or have an interest in the outcome of the issuer's decisions that conflicts with the issuer's own interests.
Apply close scrutiny and monitoring to token exchange and redemption transactions where the issuer is a party and the transaction is carried out on behalf of management body members, authorised employees, their close family members, or related commercial entities.

1. The policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 to identify, prevent, manage and disclose conflicts of interests potentially detrimental to the issuer of asset-referenced tokens shall specify the circumstances which are capable of directly or indirectly affecting the objectivity and impartiality of the connected persons in exercising their duties and responsibilities. Such policies and procedures shall take into account situations or relationships where a connected person:
  1. has an economic interest in a person, body or entity with interests conflicting with those of the issuer of asset-referenced tokens;
  2. holds responsibilities within a person, body or entity with interests conflicting with those of the issuer of asset-referenced tokens;
  3. is hierarchically supervised by a person with interests conflicting with those of the issuer or the holders of asset-referenced tokens;
  4. has a relationship of a personal, professional or political nature with a person, body or entity that has interests conflicting with those of the issuer of asset-referenced tokens or has had such a relationship within the last 3 years from when the assessment is made;
  5. carries out activities in competition with those of the issuer of asset referenced tokens, including those as a consultant, adviser, delegatee, outsourcee, third-party service provider, subcontractor or other supplier of a person, body or entity conducting the same business as the issuer of asset-referenced tokens.
1. With regard to the scenarios set out in paragraph 1, issuers of asset-referenced tokens shall take into account whether those persons, bodies or entities:
  1. are likely to make a financial gain, or avoid a financial loss, at the expense of the issuer of asset-referenced tokens;
  2. have an interest in the outcome of an activity carried out or the effect resulting from a decision taken by the issuer of asset-referenced tokens and that interest is conflicting with those of the issuer of asset-referenced token.
1. With regard to the identification of the economic interest referred in paragraph 1, point (a), issuers of asset-referenced tokens shall take into account situations where the connected person who is a member of the management body or an employee of the issuer:
  1. holds ownership rights and tokens (including governance tokens), or membership in that person, body or entity;
  2. holds any type of debt with that person, body or entity;
  3. has any form of contractual arrangements related to the activities regulated under Regulation (EU) 2023/1114 with that person, body or entity.
1. Conflict of interests policies and procedures shall ensure that transactions consisting in the exchange of asset-referenced tokens issued by the issuer of asset-referenced tokens for funds or other crypto assets, including redemption of asset-referenced tokens, are subject to close scrutiny and monitoring with regard to the conditions in which they are concluded where the issuer is one of the parties of the transaction and the transaction is carried out on behalf of any of the following persons:
  1. a member of the management body of the issuer or an employee who can negotiate or sign contracts on behalf of the issuer;
  2. a party related to a person referred to in point (a) as follows:
    a spouse, registered partner, child or parent;
    any relative who has shared the same household with that person for at least a cumulative time period of one year within the previous 5 years from the date of the transaction;
    a commercial entity, in which a person referred to in point (a) or points (b)(i) and (b)(ii) has a qualifying holding of 10 % or more of capital or of voting rights, or in which those persons are key function holders as defined in Article 3(1)(9) of Directive 2013/36/EU of the European Parliament and of the Council(⁶), hold senior management positions or are members of the management body;
  3. a person in respect of whom the persons referred to in points (a) or (b) have direct or indirect material interest as regards the outcome or the conditions of the transaction, other than obtaining a fee or commission for the execution of the transaction.