1. Introduction
When the Markets in Crypto-Assets Regulation (“MiCAR” – Regulation (EU) 2023/1114) became fully applicable on 30 December 2024, it was clear that its regulatory framework rests on two pillars: transparency and disclosure requirements for crypto-asset issuers and offerors on the one hand, and authorization and conduct-of-business obligations for crypto-asset service providers on the other. These two pillars are intertwined, working together to ensure a comprehensive level of protection for investors and market integrity.
What remained less clear when the Regulation entered into force was the regulatory treatment of crypto-assets with no identifiable issuer –or so it is alleged – as is currently the case with Bitcoin, for example. The same applies to the native assets of numerous other decentralized blockchain protocols. This ambiguity stems from the technical nature of these crypto-assets: new Bitcoins are not issued by a specific entity, but are instead generated algorithmically. The underlying protocol is maintained by voluntary developers who neither exercise economic control over the asset nor profit from its issuance. However, the market also features many meme coins where the issuer is, at the very least, unknown. In this context, countless tokens are flooded into the market without any issuer assuming regulatory responsibility.
We previously examined this issue back in 2023: see here.
In Recital 22, MiCAR states that crypto-assets without an identifiable issuer do not fall under Title II, III, or IV of the Regulation – without, however, enshrining a corresponding article within MiCAR’s regulatory framework or specifying when an issuer is actually considered unidentifiable. Initially, the market did not view this as particularly significant, as the recital is accompanied by a clarification that services related to such crypto-assets nevertheless fell within the scope of MiCAR. Consequently, the obligations of trading platform operators or providers listing Bitcoin or comparable crypto-assets seemed clearly regulated.
The European Commission has since issued an opinion on this matter within the framework of ESMA Q&A 2552: there is no obligation to publish a whitepaper for crypto-assets that lack an identifiable issuer – neither for an offeror (or issuer) nor for a trading platform operator.
But what should apply instead? Which obligations should nevertheless fall upon CASPs in this scenario, and how is the regulatory debate evolving regarding decentralized protocols and other cases where the identifiability of the issuer is restricted – potentially even by design?
2. Crypto-Assets Without an Identifiable Issuer: The Dilemma Introduced by Q&A 2552
MiCAR systematically distinguishes between three categories of crypto-assets: asset-referenced tokens (ARTs), electronic money tokens (EMTs), and a catch-all category of “other crypto-assets”. Bitcoin and the assets of comparable decentralized blockchain protocols, as well as meme coins, fall into this third category (see also: What happens if the issuers are unknown?).
This is where the dilemma emerges: the Regulation typically addresses identifiable natural or legal persons, namely issuers, offerors, or persons seeking admission to trading. The obligations under Title II presuppose a legally identifiable, accountable person who drafts the whitepaper, submits it to the competent authority and publishes it. Prior to the publication of Q&A 2552, the prevailing market consensus was clear: if the issuer is missing – and, depending on the distribution channel, the offeror as well – the obligation to draft the whitepaper for unidentifiable issuers shifts to the identifiable crypto-asset service provider. For instance, pursuant to Article 6 MiCAR, the crypto-asset whitepaper must mandatorily contain information about the offeror or the person seeking admission to trading, as well as, where applicable, the distinct issuer. Furthermore, MiCAR requires a formal assumption of responsibility through a statement by the management body of the offeror or applicant, confirming the fairness and completeness of the whitepaper’s content. This mandatory allocation of liability and accountability inherently requires an identifiable responsible party.
Commission Delegated Regulation (EU) 2025/421 regarding the machine-readable format of whitepaper data pursuant to Article 6 MiCAR further illustrates this dilemma: the mandatory fields of the reporting template include the issuer’s name and legal form, as well as its Legal Entity Identifier (LEI), where available. These are details that simply cannot be provided for crypto-assets lacking an issuer, which is why the offeror or the trading platform stepped into its place. This also appears logical, as supervisory authorities require a tangible person as a point of contact – and it seems only consistent to hold those, who intend to profit from the crypto-asset, accountable.
3. The Commission’s response: Supposedly no whitepaper obligation for Bitcoin & Co. – with likely unintended consequences
The question regarding the whitepaper obligation has significant practical implications. Article 9 MiCAR obliges offerors and persons seeking admission to trading in crypto-assets – other than ARTs and EMTs – to publish their crypto-asset whitepaper as well as any marketing communications. The parenthetical clause in Article 5 (2) MiCAR had to be interpreted in light of this restriction – and that is precisely what is in dispute.
The European Commission’s response: When asked whether the phrase “in the cases required by this Regulation” means that Article 5 (2) MiCAR exempts trading platform operators from Article 5 requirements for crypto-assets without an identifiable issuer, the European Commission responded in February 2026: Article 5(2) MiCA is not conceptualized to cover cases where crypto-assets have no identifiable issuer and are therefore not subject to Title II of MiCA. […] This provision is specifically and exclusively limited to cases, where a white paper is required by MiCA. […] Crypto-assets without an identifiable issuer do not fall within the scope of Title II. It follows that no white paper is required for these crypto-assets under MiCA and that, consequently, Article 5(2) MiCA does not apply to them. (ESMA Q&A 2552)
Practical Implications of the Commission’s Statement: Trading platform operators that list Bitcoin or comparable crypto-assets lacking an identifiable issuer are not required to draw up, notify to the competent authority, or publish a MiCAR-compliant whitepaper for these assets.
The Commission’s interpretation carries significant weight for supervisory practices. As a general rule, Bafin integrates ESMA’s Q&As into its administrative practice (unless it publishes a contrary position – which has not occurred to date for Q&A 2552). However, the legal effect of ESMA’s Q&As is limited: they reflect the Commission’s interpretation, but do not create new rights or obligations, nor can they prejudice any subsequent interpretation by EU or national courts. The definitive interpretation of EU law rests solely with the Court of Justice of the European Union (CJEU). Nevertheless, Q&A 2552 provides the clearest authoritative statement to date on the scope of Article 5 (2) MiCAR regarding crypto-assets without an identifiable issuer.
4. Regulatory framework post-Commission Statement: Ongoing CASP obligations
CASPs remain obliged to apply for authorization and to fulfil their general obligations. Prior to admitting crypto-assets to trading, they must assess, in particular, the reliability of the technical solutions utilized, potential links to illicit or fraudulent activities, and the experience and reputation of the issuer and its development team. The fact that the provision refers to the issuer as a reference point does not preclude the assessment of crypto-assets lacking an issuer; rather, it requires a determination, within the scope of this assessment, of whether such an issuer exists at all, and thus whether a whitepaper is required. However, neither MiCAR nor the Commission’s response establishes a benchmark to determine whether an identifiable (as opposed to identified) issuer exists. Similar to the concept of “fully decentralized”, clarity is lacking here (see also the EBS Best Practices Report).
In addition, Article 76 (1) MiCAR stipulates that the operating rules must clearly state that crypto-assets shall not be admitted to trading if, in the cases required by this Regulation, a corresponding crypto-asset white paper has not been published. Since, according to the Commission, no white paper is required for Bitcoin, the absence of a published white paper would not preclude the listing; however, the obligation to conduct the assessment remains.
Regarding client information, Article 66 (3) MiCAR requires trading platform operators to provide their clients with hyperlinks to any crypto-asset white papers for the crypto-assets in respect of which they provide these services. This hyperlinking obligation only applies to the extent that a white paper is required under MiCAR. Consequently, according to the Commission, there is no obligation to link a white paper for crypto-assets with an unknown issuer, though there remains an obligation to regularly check whether a white paper for a given crypto-asset has appeared in the ESMA register.
The same applies to civil liability under Section 19 of the German Crypto-Markets Supervision Act (KMAG). If a crypto-asset white paper has not been published in breach of Article 9, 28 or 51 (13) MiCAR, the acquirer of the crypto-assets may demand that the issuer, offeror, applicant, trading platform operator, and the members of the management body assume joint and several liability to repurchase the crypto-assets and reimburse the purchase price. This liability provision is expressly tied to the absence of a white paper required under MiCAR. Since no white paper would be required under MiCAR for crypto-assets like Bitcoin, Section 19 KMAG would not apply. Civil liability for the lack of a white paper would therefore be ruled out for crypto-assets without an identifiable issuer.
In conclusion, trading platform operators would face a clearly defined set of obligations when listing Bitcoin and comparable crypto-assets: MiCAR authorization, suitability assessments, and the documented determination that no white paper is required.
5. The risk of an alternative interpretation and opening Pandora’s box
Typically, ESMA Q&As provide market clarity; however, this particular one introduces two significant challenges. If one adopts the Commission’s perspective – disregarding numerous court rulings that have explicitly denied the legally binding nature of Q&As – the first step is to determine whether the crypto-asset issuer is genuinely unidentifiable, or merely unidentified at present. An incorrect assessment by a CASP could result in severe regulatory and liability consequences.
Nevertheless, there are reasons why supervisory authorities or courts might not align with the Commission. As compelling as the reference to MiCAR’s recitals may seem, established case law clearly dictates that recitals lack binding legal effect. Given the absence of an explicit provision within the substantive text of MiCAR, a court could attach little weight to Recital 22.
One reason a court might not view Recital 22 as a legally effective exclusion from the white paper requirement is its inherent inconsistency. Recital 22 itself states that MiCAR regulates, among other things, the rights and obligations of crypto-asset issuers, offerors and persons seeking admission to trading. Yet, the issuer of a crypto-asset is not the party bound by the white paper obligation – that duty falls upon the offeror or the person seeking admission to trading. Consequently, asserting that an unidentifiable issuer conceptually falls outside the scope of MiCAR could prove to be a fallacy. Why should this exempt the offeror from its obligations? Furthermore, why is this not addressed in Article 4 of MiCAR, which lists a multitude of exemptions? Even without an identifiable issuer, the offeror remains capable of drafting a white paper. Perhaps, in light of Article 4 MiCAR, Recital 22 should be interpreted to mean that crypto-assets mined like Bitcoin lack an offeror within the mining process.
Assuming the aforementioned scenario holds true, this exemption is still missing from the statutory text – and thus lacks legal binding force, which is already a flaw in European regulation. However, what is worse is that the current Q&A has opened a “Pandora’s box” that the Commission may not yet fully comprehend. At present, tens of thousands of meme coins exist. For the vast majority of these crypto-assets, no issuers are known or identified, as they conceal their identities – usually for good reason. If the best possible concealment is now rewarded with the lowest regulatory obligations, this would run counter to MiCAR’s original objectives: establishing a comprehensive level of investor protection and ensuring market integrity.
6. Conclusion
Recital 22 – or rather Q&A 2552 – has seemingly circumvented the otherwise clear regulations of MiCAR: crypto-assets without an identifiable issuer are excluded from the scope of Titles II, III, and IV of the Regulation. In February 2026, the European Commission clarified the practical implications of this stance, stating that no white paper obligation would apply – neither to an issuer nor to a trading platform operator. While the regulatory compliance framework for CASPs is clearly circumscribed, it is by no means empty: the authorization requirement, suitability assessments, and the documented determination of whether a white paper is required remain unaffected. Civil liability under Section 19 of the German Crypto Asset Markets Act (KMAG) would be ruled out for these crypto-assets.
The compelling question will be how national competent authorities (NCAs) will position themselves on this matter and how soon investor protection lawyers will begin targeting CASPs that refrained from publishing a white paper in reliance on the ESMA Q&A. Ultimately, it remains to be seen whether the courts will uphold the Commission’s view. In established case law on similar matters, judicial assessments have pointed clearly in one direction: recitals do not equate to statutory law. Given the CJEUs traditional pro-consumer approach, CASPs would be well-advised to exercise caution.
The debate surrounding MiCAR 2.0 remains highly compelling!
For further information, please contact:
Johannes Wirtz LL.M., Partner, Bird & Bird
johannes.wirtz@twobirds.com
