Current requirements (prior to MiCA implementation)
Virtual asset service providers intending to operate from Austria are required to obtain authorization from the Financial Market Authority (“FMA“). Confirmation of the authorisation is the company’s entry in the relevant register of companies offering virtual asset services and the provision of a certificate.
Confirmation of obtaining authorization is the entry of the company in the relevant register of companies offering virtual assets services and the provision of a certificate. The application for registration is submitted to the FMA electronically at reg.virtuellewaehrungen@fma.gv.at.
Depending on whether the applicant is an individual or a legal entity, the application must contain the documents and information listed in Art. 32a paragraph 1 FM-GwG:
- name or title of the company and, if available, its director(s);
- the company’s place of registration and the corresponding working address for sending correspondence;
- a description of the business model from which the nature of the intended services can be determined;
- a description of the internal control system that the applicant intends to implement, as well as a description of the planned AML/CFT policies and procedures;
- in the case of legal entities, indicate the beneficial owners and the size of the shares of the owners who directly or indirectly own a qualified share in the capital of the applicant.
Has the jurisdiction enacted a law/draft law implementing MiCA?
Draft Bill MiCA Regulation Enforcement Act; Financial Market Supervisory Authority Act, Banking Act and others, amendment (334/ME)
Who is the regulator under the law/draft law implementing MiCA?
Financial Market Authority (“FMA”)
Requirements for future CASPs stipulated by the national legislation implementing MiCA, the presence of national peculiarities
The FMA will publish a regulatory document in the near future, which will provide additional specifications for each application form, as well as the necessary documents and information that must be submitted.
At the moment, an application form has been published that all CASPs will be required to submit once national legislation is adopted and the procedure for obtaining permits is established.
CASP authorisation form Art 62 MiCAR
This statement reflects the requirements for CASP and the information that CASP must submit to the FMA. Such information fully coincides with the requirements set forth in MiCA. Also, all interested companies are advised to contact the FMA as early as possible to allow sufficient time for preparation and coordination. Those companies that are already making specific preparations to apply for authorization as a CASP in Austria are invited to notify the FMA of their interest in scheduling an introductory meeting by sending an e-mail to the following address: casp@fma.gv.at, and at the same time sending the questionnaire for initial meeting.
Questionnaire for initial preliminary meeting
The period of time by which the CASP must comply with the new requirements, as well as the procedure for notifying the regulator of compliance with the new requirements
Accordingly, Art. 23 of Chapter 5 of the Draft Bill MiCA Regulation Enforcement Act; Financial Market Supervisory Authority Act, Banking Act and others, amendment (334/ME) Crypto-asset service providers that have provided their services under current legislation as registered virtual currency service providers may continue to operate until December 31, 2025, or until the date of application for compliance with the new requirements, whichever is earlier. New service providers seeking authorization after 31 December 2024 must fully comply with MiCA provisions.
On the FMA website, the intended procedure and stages of submitting an application, which consists of the following steps, are outlined in the form of a scheme:
1. Request for an initial (preliminary) meeting with the FMA and submission of all requested documents
2. Exchange on the basis of the documents submitted, communication of the FMA’s supervisory expectations and, if necessary, coordination of further steps A
3. Iterative exchange and monitoring of preparations on the basis of a step-by-step and comprehensible implementation of supervisory expectations
4. Official submission of the authorisation application
5. Review of the authorisation application for completeness by the FMA
6. If necessary, iterative contact and follow-up request by FMA
7. If necessary, re-examination of the authorisation application for completeness and verification of compliance with the MICAR authorisation requirements
8. Authorisation of the CASP and publication on the FMA website
9. Start of operational activities of CASP and ongoing supervision by the FMA
Also, the website contains information on recommendations for the preparation of the application and the need to ensure compliance with the relevant provisions on the prevention of money laundering and terrorist financing.
There is also an “Information for CASP Applicants” section on the FMA website. The section includes approximate deadlines for submitting applications, the review procedure and explanatory notes. Essentially, this section provides an explanation for applicants under the provisions of MiCA and emphasizes that this is the FMA’s vision and guidance for the applicant. But due to the lack of an appropriate legal framework in Austria, it is not an official procedure.
Applications for authorization will only be formally considered from the date on which the relevant national legislation accompanying MiCAR enters into force and the FMA is designated by law as the national competent authority.
The FMA plans to start the stage of submitting a formal application for a permit as early as October 2024.
The decision to grant or refuse a permit is made by the FMA Executive Board and is notified to the applicant in writing. A positive decision is subsequently published on the FMA website.
Is there a transition period before the full implementation of MiCA?
Yes, Art. 23 of Chapter 5 of the MiCA Regulation Enforcement Act; Financial Market Supervisory Authority Act, Banking Act and others, amendment (334/ME) Yes, Art. 23 of Chapter 5 of the MiCA Regulation Enforcement Act; Financial Market Supervisory Authority Act, Banking Act and others, amendment (334/ME) provides for a transition period for virtual asset service providers that have received authorization from the FMA. They can continue to operate in Austria until December 31, 2025.
The ability of a CASP from a jurisdiction with a transition period to operate freely in a jurisdiction without a transition period starting from January 1, 2025.
The relevant provisions have not yet been adopted
Liability provided for CASPs that continue to operate at the place of registration without meeting the new requirements
Articles 11, 12, Section 3 of the MiCA Regulation Enforcement Act; Financial Market Supervisory Authority Act, Banking Act and others, amendment (334/ME) provides for a number of fines for violations of various kinds. The articles do not contain a specific sanction for violation of registration requirements. However, a list of actions related to violation or failure to comply with MiCA requirements is mentioned, compliance with which is practically impossible without registration and is the essence of CASP activities, for which a fine of 700,000 euros is provided.
Manimama Legal & Growth Agency provides a gateway for the companies operating as the virtual asset wallet and exchange providers allowing to enter to the markets legally. We are ready to offer an appropriate support in obtaining a license with lower founding and operating costs. We offer KYC/AML launch, support in risk assessment, legal services, legal opinions, advice on general data protection provisions, contracts and all necessary legal and business tools to start business of virtual asset service provider.
The content of this article is intended to provide a general guide to the subject matter, not to be considered as a legal consultation.
