EBA opinion on PSD2 and MiCAR

The European Banking Authority (EBA) has issued an opinion (referred to as the No Action letter) in response to a request from the European Commission (EC) in December 2024, on the interplay between Payment Services Directive (PSD2/3) and Markets in Crypto-Assets Regulation (MiCAR) in relation to electronic money tokens (EMTs). It seeks to clarify how national competent authorities (NCAs) should approach the authorisation and supervision of crypto-asset service providers (CASPs) that engage in EMT-related activities during the transitional period before PSD3 and the Payment Services Regulation (PSR) come into effect. The EBA advises the EC, European Council and European Parliament to avoid long-term dual authorisation requirements and advises NCAs to require PSD2 authorisation only after a transition period ending on 2 March 2026, and only for a defined subset of CASPs—specifically those providing services such as the custody and administration of EMTs or facilitating EMT transfers on behalf of clients. NCAs are encouraged to adopt streamlined authorisation procedures that leverage information already submitted during the MiCAR process. Post-transition, NCAs must ensure entities who are not licensed as a payment service provider (PSP) or have not entered partnership with a PSP, are prevented from providing EMT related services that qualify as a payment service.

Once authorisation as a PSP is granted, the EBA has advised certain PSD2 provisions, such as safeguarding requirements, consumer disclosures and open banking obligations should be deprioritised. Those provisions which should remain prioritised include strong customer authentication for accessing custodial wallets and initiating EMT transfers, fraud reporting and own funds calculations. The EBA has clarified that certain crypto-asset activities, such as the exchange of crypto-assets for fiat or other crypto-assets, should not trigger licensing requirements. Further, the EBA has advised NCAs not to classify the facilitation of crypto-asset purchases using EMTs as payment services. The EBA has acknowledged this exempts many EMT transactions from PSD2 requirements during the interim period but considers that dual authorisation would impose an undue burden on CASPs.

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