European Union Outpaces Unfocused United States In Crypto Regulation, But MiCA Article 68 Raises Concerns
As the European Union takes the lead in addressing the complex regulatory landscape of cryptocurrencies and blockchain technology, striking a balance between innovation, privacy, and regulatory compliance becomes more imperative. The Markets in Crypto-Assets Regulation proposed in December 2020 and expected to be published in the Official Journal of the EU this summer, is a notable example of the EU’s evolving approach to crypto regulation. The provisions within MiCA pertaining to stablecoins are anticipated to take effect in late June 2024, while those affecting crypto asset service providers are likely to be implemented by the end of December 2024.
This approach stands in contrast to the regulation-by-enforcement style prevalent in the United States and certain other jurisdictions. Recent events in the U.S., including the closure of Signature Bank and the U.S. Securities and Exchange Commission lawsuits against Genesis, Gemini, and now Bittrex, have heightened concerns regarding innovation and capital flight within the nation’s cryptocurrency sector.
Crypto exchange Coinbase has now urged the SEC to establish rules for crypto, filing a request on April 24, 2023, with the Third Circuit Court of Appeals to compel a response and “break the unlawful logjam.” After nine months of silence from the SEC since a petition in July, Coinbase now seeks a definitive answer from the SEC regarding a framework for crypto.
In contrast, the EU has been working diligently to create regulations that safeguard consumers and encourage innovation in the crypto space. Spanning hundreds of pages, MiCA establishes a comprehensive regulatory framework for crypto-assets, with a focus on disclosure and consumer protection. As a directly applicable regulation across the EU’s 27 Member States, along with Norway, Iceland, and Liechtenstein, MiCA establishes a unified approach.
MiCA focuses on consumer and investor protection, with measures to increase regulatory oversight to balance the traditional and crypto-asset industries. The regulation’s ultimate goal is to build trust in crypto-assets among consumers and financial institutions. As a result, MiCA has the potential to encourage more widespread use of crypto-assets and the distributed ledger and blockchain technologies that underpin them. With its impact expected to extend well beyond the EU’s borders, MiCA will likely serve as a model for other jurisdictions as they develop their regulatory frameworks for the rapidly evolving crypto landscape.
The U.S., however, still finds itself in regulatory disarray, struggling to navigate the crypto landscape. As the EU pursues a more balanced approach, the U.S. grapples with various governing bodies vying for dominance presenting conflicting viewpoints and guidelines, further emphasizing the importance of the EU’s commitment to a harmonious and pragmatic crypto regulatory framework.
The MiCA regulation aims to bring crypto assets and related services under the EU’s existing legal framework, offering legal certainty to the crypto industry and including investor protection and anti-money laundering measures. Some critics (including this author), however, argue that certain language, particularly Article 68, is highly restrictive, potentially limiting blockchain industry growth and innovation.
Article 68 of MiCA addresses the rules for operating a trading platform for crypto assets. It requires that trading platforms prevent the trading of crypto assets with built-in anonymization unless the holders of the assets and their transaction history can be identified by authorized CASPs. This provision could have far-reaching consequences for individuals, businesses, and communities.
Privacy is a cornerstone of human rights, enabling individuals to communicate freely and securely without fear of surveillance or retaliation. Privacy is essential for financial transactions to safeguard sensitive information from hackers, competitors, and malicious actors. MiCA Article 68 restrictions, however, could jeopardize stakeholders’ privacy and security.
As the EU forges ahead with the implementation of MiCA, the European Banking Authority and the European Securities and Markets Authority will play pivotal roles in shaping the future of the crypto landscape. They will be responsible for finalizing various Regulatory Technical Standards, or “level two text,” and guidelines before the full implementation of MiCA rules. This collaborative effort between the EBA and ESMA will ensure a more comprehensive and unified approach to crypto regulation, extending beyond just countering illicit activities and addressing other aspects such as anti-money laundering.
To address these concerns, a more flexible and dynamic regulatory approach is necessary – one that fosters the continued growth and innovation of the blockchain industry while ensuring compliance with regulatory requirements and protecting privacy and security. Regulators must avoid a one-size-fits-all approach and instead consider alternative options that strike a balance between innovation and compliance.
One such approach could involve allowing CASPs to continue facilitating confidential transactions while still ensuring compliance with regulatory requirements. Rather than prescribing specific technical solutions, regulators should grant regulated intermediaries the flexibility to devise their own risk-based solutions. These solutions balance compliance with innovation and privacy.
Additionally, EU regulators could collaborate with industry stakeholders to develop regulatory and technical standards that offer more guidance on implementing MiCA Article 68. This approach would involve open dialogue and input from industry leaders and experts. This would enable regulators to better understand the potential implications of regulation on the blockchain industry and the privacy and security of individuals, businesses, and communities.
The U.S., with its patchwork of regulations and lack of a unified strategy, serves as a cautionary tale. As the EU moves forward with the MiCA regulation, it can avoid other jurisdictions’ quagmires and prioritize a cohesive and adaptable regulatory stance.
Finding a solution to MiCA Article 68 challenges requires coordination and collaboration between regulators, industry experts, and stakeholders. By considering alternative compliance options, developing regulatory and technical standards, and engaging with the blockchain community, MiCA Article 68 can be implemented in a way that promotes growth and innovation in the blockchain industry while protecting the privacy and security of all stakeholders.
Moreover, MiCA establishes uniform requirements for the offering and marketing of most crypto-assets, as well as extensive compliance requirements for CASPs operating within the EU. These compliance requirements aim to enhance transparency, minimize market contagion, and reduce user risks. With the ability for CASPs registered in one EU member state to “passport” their services across Europe without requiring approval from regulators in all twenty-seven member states, the EU is positioning itself as a leader in crypto-asset innovation.
As MiCA’s impact extends well beyond the EU’s borders, other countries may look to the comprehensive regulation as a model for developing their frameworks. By providing market participants with clear rules and expectations, MiCA enables a level playing field for innovation while ensuring consumer protection and market integrity. The EU’s balanced and flexible approach to regulating crypto-assets could serve as a valuable example for the U.S. as it works to move beyond its current regulatory disarray and establish a more cohesive and effective framework for the rapidly evolving crypto sector.
The differing approaches adopted by the EU and the U.S. in regulating the crypto sector highlight the challenges in reaching a consensus on effectively governing a rapidly evolving technology. As the EU embarks on the implementation of the MiCA regulation, it must remain vigilant of potential pitfalls that have beset the U.S. By embracing a balanced and adaptable strategy, the EU is well-positioned to become a global leader in fostering innovation within the crypto space.
Disclosure: I am an employee of Electric Coin Co., a company dedicated to advancing shielded transaction technology in the crypto industry, and a long-term holder of ZEC tokens. The views and opinions expressed in this article are my own and do not necessarily reflect the official policy or position of Electric Coin Co. This article is for informational purposes only and should not be construed as legal or financial advice.
