Our response to the European Commission’s MiCA review consultation
MiCA’s first year proved the design and exposed the delivery. One authorisation that passports across thirty EEA states is the most valuable idea in crypto regulation anywhere, and 323 register entries by ESMA’s 31 July update show it works where it is allowed to. But the passport is only as real as its weakest member state, several of which have authorised nobody; the transitional period’s close stranded a large cohort of formerly registered firms with revenue, users and no lawful road back; and the asset-referenced token track has attracted zero issuers anywhere in the Union. Our response, in five positions, asks the review to finish the delivery rather than redesign the machine.
1. Make the passport real in every member state
Authorisation is concentrated where regulators function: Germany, France and the Netherlands lead the register, while several member states have authorised no CASPs at all, and at least one entered the post-transitional period without an implementing law or a designated regulator. A single market in which the right to authorisation depends on which capital a firm can practically file in is a passport with holes in it. The review should establish a backstop: where a member state cannot process applications within the regulation’s own timelines, applicants need an alternative, functioning route, whether through ESMA or through a designated peer authority. Firms should compete on compliance, not on their luck in choosing a regulator.
2. Choose supervisory consistency over supervisory relocation
On the proposal to move CASP supervision to ESMA, we support the direction the Parliament’s draft reports have taken: ESMA supervision for significant CASPs, with national authorities retained for the rest. What matters more than who supervises is how uniformly the process runs. The regulation already promises a 40-working-day substantive assessment; the review’s contribution should be transparency and discipline around that clock, including publication of actual processing times and stop-the-clock practices by member state. Consistency of experience, not centralisation for its own sake, is what makes the single market credible to an applicant.
3. Give the stranded cohort a lawful road back
The transitional period closed on 1 July 2026 with a clear instruction to unauthorised firms to wind down. The instruction was correct; the aftermath still needs policy. Thousands of firms that operated lawfully under national registrations before MiCA, in some member states with no domestic route to authorisation at all, now face a binary of exit or breach. The review should consider a defined re-entry path for formerly registered firms with clean supervisory records: not a reopened transition, but a predictable, time-limited application track that recognises prior supervised operation. Alongside it, reverse solicitation deserves clear, narrow guidance; today it functions as an untested belief rather than a rule, which serves neither consumers nor compliance.
4. Keep the proportionality that already works
Two features of the current framework deserve explicit preservation. The own-funds requirement that can be met by capital or by an insurance policy under Article 67(4) is a genuinely proportionate route for smaller, well-run firms, and should not be narrowed. And the knowledge-and-competence guidelines that took effect in July are sensible in substance but should scale with firm size in their documentation demands, so that a five-person CASP is not evidencing training on the apparatus of a bank. Proportionality of this kind is not laxity; it is what keeps the compliant path open to the firms most likely to bring innovation into the perimeter.
5. Answer the empty ART track, and define the interest-ban perimeter
Two calibration questions the review should not leave unexamined. First, the asset-referenced token regime has zero issuers anywhere in the EU while the e-money token track functions; a licensable category that a whole market declines to use for a full year is asking for a reassessment of its design, not merely more time. Second, on the consultation’s own question regarding the prohibition on granting interest: whatever policy choice the review makes, the perimeter needs precision. The current breadth, reaching benefits provided through third parties, leaves compliant product design guessing at the boundary. A defined rule, whichever way it is set, serves both consumer protection and the firms trying to respect it, particularly against the visibly divergent approaches taken in other major markets.
Who we are
Infinilex is a legal, compliance and structuring consultancy for founders and high-growth companies operating across India, the UAE and the US, with a Web3 and digital-assets practice that runs MiCA authorisation programmes for non-EU firms, with EU local counsel handling regulator-facing filings. Our comparative work on the regime is published openly, including MiCA vs VARA and the CASP authorisation readiness checklist. We are a member of the Circle Alliance Program.
Serving EU clients from outside the EU, or stranded by the transitional close?
The review will move; your obligations already apply. We map whether MiCA catches your business, which member state fits, and the realistic programme, before you brief anyone in Europe.
This response states general regulatory positions and is not legal advice. Register figures are dated to ESMA’s 31 July 2026 update; the consultation and the legislative process referenced here are ongoing and positions may evolve with them.