Non-MiCA-Compliant ARTs and EMTs: ESMA’s Three-Month Ceiling

On 8 October 2026 ESMA published an opinion, reference ESMA75-113276571-1742, telling national competent authorities (NCAs) that crypto-asset service providers (CASPs) should not provide crypto-asset services in relation to non-MiCA-compliant ARTs and EMTs: asset-referenced tokens and e-money tokens for which the conditions of Title III or Title IV of Regulation (EU) 2023/1114 (MiCA) are not met. The expectation covers every MiCA service, custody and transfer included. Where an NCA identifies legacy exposures, the opinion says it should require remediation as soon as possible and no later than three months after publication. Counting from 8 October 2026, that ceiling falls on 8 January 2027.

The opinion goes further than ESMA’s January 2025 statement on the same tokens. That statement tied the restriction to whether a service amounted to an offer to the public, and it said mere custody and transfer should remain possible. The October text rests on the Article 66(1) duty to act honestly, fairly and professionally in the best interests of clients, and it asks NCAs to look at all services, individually or in combination. For a CASP, the review comes down to three artifacts: a token-status inventory, a service-by-service control map and a dated wind-down plan for existing client holdings.

Related reading: ESMA MiCA Review Response: What CASPs and Token Issuers Should Map

Dates that frame the stablecoin exit

The opinion is the latest step in a sequence that began when the MiCA stablecoin titles applied. The dates a CASP review needs:

• 30 June 2024: Titles III (ARTs) and IV (EMTs) of MiCA apply.
• Before 30 July 2024: ART issuers relying on the Article 143(4) transitional regime had to apply for authorisation; credit institutions issuing ARTs had to notify under Article 143(5). No equivalent transitional route exists for EMTs.
• 17 January 2025: the Commission’s answer to Q&A 2404 and ESMA’s public statement ESMA75-223375936-6099. Restrictions on existing services were expected by the end of January 2025, with a sell-only window to the end of Q1 2025.
• 1 July 2026: the latest end date of the Article 143(3) transitional period for CASPs operating under national law.
• 30 September 2026: ESMA’s response to the Commission’s MiCA review consultation asks for an explicit prohibition in the Regulation itself.
• 8 October 2026: the opinion is published.
• 8 January 2027: three months after publication, the outer limit for remediation of legacy exposures that an NCA identifies.

An Article 29 opinion addressed to supervisors

ESMA issued the text under Article 29(1)(a) of its founding regulation, Regulation (EU) No 1095/2010, which lists providing opinions to competent authorities among the tools for building a common supervisory culture. Paragraph 9 says the opinion is addressed primarily to NCAs, to promote convergence and to support their assessment of specific business set-ups.

The instrument matters for how it reaches a firm. ESMA guidelines issued under Article 16 of the same regulation carry a formal notification step: within two months of publication in all EU official languages, each NCA tells ESMA whether it complies or intends to comply, as the compliance section of ESMA’s MiCA guidelines on reverse solicitation sets out. The opinion sets out no comparable notification step. Paragraph 28 says instead that ESMA will, in cooperation with NCAs, regularly monitor the timely application of the opinion.

Reading the opinion as correspondence between supervisors misses two paragraphs. Paragraph 12 states that CASPs should not provide crypto-asset services in relation to ARTs or EMTs that are not compliant with MiCA. Paragraph 22 says CASPs should not maintain, introduce or facilitate access to such tokens for EU clients, and should implement controls to prevent it. Both are written to firms.

Two limits are set out in the text itself. Paragraph 7 says the opinion leaves unchanged the position in Q&A 2404 and the accompanying January 2025 statement on when a service amounts to an offer or admission to trading, and does not imply that every crypto-asset service in relation to an ART or EMT is an offer to the public or an admission to trading under Articles 16(1) or 48(1). Paragraph 10 keeps the EBA’s and NCAs’ competences over issuers of ARTs and EMTs untouched.

From the offer-to-the-public test to an Article 66(1) presumption

The January 2025 position worked through Titles III and IV. In its answer to Q&A 2404, the Commission said offering an ART or EMT to the public, or seeking its admission to trading, is only possible if the issuer is authorised under MiCA, subject to the ART transitional provisions in Article 143(4) and (5), and that a person other than the issuer needs the issuer’s written consent. Operators of trading platforms that list tokens of unauthorised issuers are treated as seeking admission to trading on their own initiative. Exchange, reception and transmission, and execution services could amount to an offer where they promote or advertise the token, which the Commission said requires a case-by-case assessment.

ESMA’s statement of the same day applied that analysis. Trading platforms were expected to stop making non-compliant ARTs and EMTs available for trading, and reception and transmission, execution and exchange were expected to cease where they constituted an offer to the public. The statement added that mere custody and transfer of these tokens “should remain possible”, while investors were to be clearly informed of the restrictions attached to services in them.

The October opinion changes the hook. Paragraph 13 locates the risk in the token: a service in relation to a non-compliant ART or EMT exposes clients to risks inherent to its non-compliant status, because the issuer-level safeguards MiCA requires are absent. ESMA’s view is that a CASP cannot adequately identify, manage or mitigate those risks with the measures available to it, and that this should give rise to a presumption that providing all MiCA services is incompatible with Article 66(1). Paragraph 14 adds that the conclusion does not depend on whether a given service is itself an offer to the public or admission to trading.

The opinion calls the outcome a presumption. It does not say what, if anything, would rebut it.

Which tokens count as non-MiCA-compliant ARTs and EMTs

Footnote 1 defines the population: ARTs or EMTs for which the conditions for a lawful offer to the public or admission to trading in the EU under Title III or Title IV, “including any applicable exemptions or transitional arrangements”, are not met. Applying it takes two separate answers per token.

The first is classification. MiCA defines an e-money token as a crypto-asset that purports to maintain a stable value by referencing the value of one official currency, and an asset-referenced token as one that is not an e-money token and purports to maintain a stable value by referencing another value or right, or a combination, including one or more official currencies (Article 3(1), points (6) and (7)). Recital 41 says Title III or IV applies to a token within those definitions irrespective of how the issuer designs it. The January 2025 statement asked CASPs in doubt about a classification to contact their NCA; the mechanics of the test are in our MiCAR token classification guide for ARTs, EMTs and utility tokens.

The second is status, and the conditions differ by token type:

• ARTs: under Article 16(1), only the issuer may offer the token or seek its admission to trading, and only if it is an EU-established entity authorised under Article 21 or a credit institution complying with Article 17. Other persons need the issuer’s written consent. Article 16(2) exempts small issuances and offers solely to qualified investors from authorisation, while still requiring a notified white paper, and Article 143(4) and (5) cover ARTs issued before 30 June 2024.
• EMTs: Article 48(1) reserves the offer and admission to trading to an issuer that is authorised as a credit institution or an electronic money institution and has notified a crypto-asset white paper to its competent authority and published it in accordance with Article 51, with others again needing written consent. Article 48(4) and (5) carry exemptions linked to Directive 2009/110/EC, and the EBA’s July 2024 statement recorded that no transitional arrangement applies to EMTs. Under Article 48(2), an EMT referencing the official currency of a Member State is deemed to be offered to the public in the Union.

The issuer-side obligations behind those conditions are covered in our article on the EBA MiCA statement on ARTs and EMTs. For the CASP, the useful sources are ESMA’s interim MiCA register, which includes files on issuers of ARTs and issuers of EMTs, and the authorisation information published by the issuer’s competent authority, which the EBA pointed consumers to in 2024. A register entry is evidence for the inventory. The absence of one sends the token into the exemption check before it goes on the non-compliant list.

Service by service: where a token can still reach a client

Paragraph 21 asks NCAs to consider whether a CASP’s services, individually or in combination, allow EU clients to “acquire, trade, exchange, subscribe for, increase their exposure to, or otherwise access or maintain” non-compliant ARTs or EMTs. It then names every service: operating a trading platform, exchange, execution, reception and transmission, placing, advice, transfer, custody and portfolio management. The table maps those services to the MiCA definitions in Article 3(1), point (16). The middle and right columns are my reading of how each service can keep a token within reach, framed as review questions.

The trading platform row holds a gap that a delisting exercise can miss. Removing the token as a traded asset leaves it in place wherever it serves as the settlement leg of another pair, and a client who sells bitcoin into that pair ends up acquiring the token. Paragraph 21 names acquisition as the first route, so a quote-currency pair, as I read it, keeps the token available as surely as a direct listing.

The words “in combination” carry weight too. A CASP that closes its exchange desk while its reception and transmission flow still routes buy orders to a third-country venue has, on the opinion’s wording, left the token within reach of EU clients.

Controls, and the limits of warnings and disclosures

Paragraph 22 asks for “appropriate technical, contractual and organisational controls” to prevent the availability of these tokens in the Union, including controls preventing EU clients from acquiring or increasing positions. Paragraph 26 repeats the point as an instruction to NCAs: they should ensure CASPs implement controls preventing the continued or systematic availability of the tokens.

Paragraph 19 rules out the cheaper substitute. ESMA considers that reliance on warnings, disclosures or client acknowledgements would not sufficiently address its concerns. Its reasoning starts from the point that warnings do not prevent the continued availability and use of such tokens, and adds three more: disclosures are unlikely to fully communicate the significance of the missing safeguards, because MiCA’s protections operate collectively; expecting clients to assess the absence of those safeguards, or to rely on a CASP’s assessment of it, is highly unlikely to let them evaluate the risks accurately; and any such assessment would involve legal, regulatory and operational judgments that may differ in scope, methodology and conclusions. Paragraph 20 adds a supervisory reason. Services in relation to these tokens hinder an NCA’s ability to enforce the quality of white paper information and marketing communications, and to monitor that trading does not harm holders, retail holders in particular.

That reverses the role communication played in January 2025, when campaigns to raise investor awareness were part of the expected response. Client communication still has a job under the opinion: paragraph 24 says residual services should be clearly communicated to clients. Its purpose now is to tell clients what is closing, when, and which exit routes stay open.

What the three control types look like is left to the firm. Read against paragraph 22, I would expect a technical layer of order-entry and deposit blocks keyed to a token-status flag, a contractual layer of amended terms of business and mandates, and an organisational layer that names an owner for token status and sets a re-check cadence against the register. The opinion names the three categories and lists no specific control.

Transfer controls for e-money tokens sit next to a second perimeter. Recital 93 of MiCA notes that, depending on their features, services associated with transferring e-money tokens could fall under the definition of payment services in Directive (EU) 2015/2366; our article on stablecoin reporting obligations under MiCAR and PSD3 covers that overlap.

The three-month wind-down window

Paragraph 23 allows NCAs to let CASPs that do not yet comply provide strictly limited residual services, where necessary to ensure an orderly wind-down and avoid client detriment. Paragraph 24 sets the boundary. Residual services should be limited to the liquidation, conversion, withdrawal, transfer or safekeeping of existing holdings. They should not support new acquisitions, promotion, trading, active distribution or continued market availability. They should be time-limited, clearly communicated to clients and subject to close supervisory scrutiny.

Paragraph 27 adds the clock. Where NCAs identify remaining legacy exposures, they should require remediation as soon as possible and no later than three months following publication, and any continuation should be strictly limited to sell-only, conversion, transfer or withdrawal functionalities, time-limited, risk-based and closely supervised. The three-month figure is a ceiling on what NCAs require, and “as soon as possible” comes first, so an NCA can set an earlier date for a given firm. The publication date is 8 October 2026 on both the opinion and ESMA’s news item, which puts the ceiling at 8 January 2027.

The two lists do not match. Paragraph 24 includes safekeeping of existing holdings; paragraph 27 lists sell-only, conversion, transfer and withdrawal, and omits safekeeping. The opinion also says nothing about the holdings of clients who take no action before the deadline. The client-asset questions are similar to those raised when the MiCA transitional period ended, discussed in our piece on the MiCA CASP wind-down and client assets, but for balances still in custody on 9 January 2027 the opinion itself gives no answer.

The data behind an NCA assessment

Paragraph 25 asks each NCA to assess whether any authorised CASP in its jurisdiction is providing services in relation to non-compliant ARTs and EMTs, or services that maintain or support the availability of such tokens to clients in the Union. The opinion attaches no template, return or submission deadline to that assessment. Without a template, any assessment of whether services continue runs on data the CASP already holds, and Article 68(9) of MiCA already requires CASPs to arrange for records to be kept of all crypto-asset services, activities, orders and transactions they undertake.

The evidence I would assemble to answer the paragraph 25 question has five parts:

• Token inventory: each ART-like or EMT-like token supported, its classification, the status basis (authorisation, exemption or transitional arrangement), the source checked and the date of the check.
• Service map: for each MiCA service, whether the token is reachable and the control that closes the route.
• Legacy exposure data: per non-compliant token, the number of EU clients holding it, units and value in custody, open orders and portfolio positions, taken as at 8 October 2026 and at each wind-down checkpoint.
• Client communications: what was sent, to which client segments and when.
• Residual-service log: sell-only, conversion, withdrawal and transfer activity during the window.

A snapshot taken at the publication date gives the CASP its own baseline for showing progress through the window. Paragraph 28 commits ESMA to regular monitoring of timely application together with NCAs.

Where the opinion stops short

The opinion names no token and leaves issuer supervision with the EBA and the competent authorities. Its scope terms carry no definition: neither “EU clients” (paragraphs 21 and 22) nor “clients in the Union” (paragraph 25) is defined, and clients outside the Union are not addressed.

It also leaves the text of MiCA unchanged. In its response to the Commission’s MiCA review consultation, dated 30 September 2026, ESMA observed uncertainty over the extent to which authorised CASPs may continue to support the availability, use or trading of unauthorised stablecoins. It invited the Commission to amend the Regulation explicitly, so that a CASP “cannot provide any licensable service under MiCA” in relation to non-compliant ARTs or EMTs, an amendment ESMA says would “create a binary supervisory test”. That is a request to the legislator, and the opinion followed eight days later. Until MiCA is amended, the restriction rests on ESMA’s reading of Article 66(1) as applied by each NCA.

Frequently Asked Questions

A client tries to deposit a non-compliant EMT into custody after 8 October 2026. Does the residual-services window cover it?

Paragraph 24 limits residual services to existing holdings, and paragraph 22 asks for controls preventing EU clients from acquiring or increasing positions. On my reading an inbound deposit falls outside the residual list, because it adds to the position held through the CASP’s custody service. The opinion does not mention inbound transfers by name, so the treatment of deposits already in flight on 8 October 2026 is one to confirm with the home NCA.

An ART relies on the Article 16(2) small-issuance exemption. Is it non-compliant?

Footnote 1 counts applicable exemptions as a route to compliance, so the answer turns on the exemption conditions. Article 16(2)(a) applies where the average outstanding value of the ART, calculated at the end of each calendar day over 12 months, never exceeds EUR 5 000 000 and the issuer is not linked to a network of other exempt issuers. The issuer must still draw up a white paper under Article 19 and notify it to its home NCA. A token whose issuer meets those conditions sits outside the definition; one whose issuer claims the exemption without notifying a white paper fails the plain-text conditions.

Does the opinion reach non-EU clients of an EU-authorised CASP?

The opinion frames its expectations around EU clients and availability in the Union and is silent on clients outside the Union. Whether serving them could still keep a token available in the Union, for example through order books shared with EU clients, is a question the text leaves open and one for the home NCA.

A CASP supports a wrapped or bridged version of a MiCA-compliant EMT. Does the issuer’s authorisation cover the wrapper?

The opinion does not address wrapped tokens. In its 30 September 2026 response to the MiCA review, ESMA listed “certain wrapped or tokenised arrangements” among the classification questions it sees at the boundaries of MiCA. Whether a wrapper is itself an ART, an EMT or another crypto-asset, and who issues it, has to be answered for the wrapper. My working assumption is that the underlying issuer’s authorisation does not carry over to a wrapper issued by someone else without a classification and status check of its own.

The NCA has not contacted the firm. Does the three-month ceiling still matter?

Paragraph 27 is framed as an instruction to NCAs that identify legacy exposures. The CASP-facing expectations in paragraphs 12 and 22 carry no such condition, and nothing in the opinion makes them depend on NCA contact.

What counts as conversion during the window?

Paragraphs 24 and 27 list conversion without defining it. The January 2025 statement spoke of converting holdings into “MiCA-compliant alternatives”. I read converting a non-compliant token into funds or into a MiCA-compliant EMT as a residual service, and converting it into another non-compliant token as a new acquisition of the kind paragraph 24 excludes.

Related Articles

• ESMA MiCA Review Response: What CASPs and Token Issuers Should Map: ESMA’s 30 September 2026 asks to the Commission, including the proposed Level 1 ban on CASP services for unauthorised stablecoins.
• MiCAR Token Classification: Reporting Obligations for ARTs, EMTs, and Utility Tokens: how a token is classified under MiCA and what follows for issuers.
• EBA MiCA Statement on ARTs and EMTs: Issuer Takeaways: the issuer-side requirements whose absence makes a token non-compliant.
• MiCA CASP Wind-Down: What Unauthorised Providers Must Do as the Transitional Period Ends on 1 July 2026: client-asset handling when a provider must stop services.
• Stablecoin Reporting Obligations: MiCAR E-Money Tokens and the PSD3 Shift: EMT obligations and the payment services overlap.

Key Takeaways

• Take the legacy exposure snapshot as at 8 October 2026 before client exits begin, so the starting position is not lost.
• Plan custody and transfer as in-scope services: paragraph 21 names both, and on my reading the January 2025 room for mere custody and transfer now extends only to the residual services in paragraph 24.
• Close the buy side first: the control test in paragraph 22 targets acquiring or increasing positions, while exits can stay open during the window where the NCA allows residual services under paragraph 23.
• Check every trading pair, including those where the token is only the quote currency.
• Rewrite client messaging for these tokens as closure notices with exit routes and dates, and retire any acknowledgement form used to keep access open.
• Ask the home NCA whether it expects remediation earlier than the three-month ceiling, since paragraph 27 puts “as soon as possible” first.
• Follow the Commission’s MiCA review for the explicit Level 1 prohibition ESMA requested on 30 September 2026.

Sources and References

• ESMA, Opinion on the provision of crypto asset services in relation to non-MiCA-compliant asset-referenced tokens and e-money tokens, ESMA75-113276571-1742 (8 October 2026): ESMA (PDF)
• ESMA news, ESMA sets out supervisory expectations on services related to unauthorised stablecoins (8 October 2026): esma.europa.eu
• ESMA, Public Statement on the provision of certain crypto-asset services in relation to non-MiCA compliant ARTs and EMTs, ESMA75-223375936-6099 (17 January 2025): ESMA (PDF)
• ESMA news, ESMA and the European Commission publish guidance on non-MiCA compliant ARTs and EMTs (17 January 2025): esma.europa.eu
• European Commission answer to Q&A 2404, scope of public offering for ARTs and EMTs (17 January 2025): ESMA Q&A tool
• ESMA, Response to the European Commission’s consultation on the MiCA review, ESMA75-113276571-1721 (30 September 2026): ESMA (PDF)
• EBA, Statement on the application of MiCAR to ARTs and EMTs (5 July 2024): EBA (PDF)
• Regulation (EU) 2023/1114 on markets in crypto-assets (MiCA), including Articles 3, 16, 17, 19, 21, 48, 51, 66, 68, 143 and 149 and recitals 41 and 93: EUR-Lex
• Regulation (EU) No 1095/2010 establishing ESMA (ESMA Regulation), Articles 16 and 29: EUR-Lex
• ESMA, Final Report on the Guidelines on reverse solicitation under MiCA, ESMA35-1872330276-1899 (17 December 2024), section 4 on compliance and reporting under Article 16(3) of the ESMA Regulation: ESMA (PDF)
• ESMA, Markets in Crypto-Assets Regulation page, including the interim MiCA register: esma.europa.eu

Before 8 January 2027

For legacy exposures an NCA identifies, paragraph 27 puts the outer limit for remediation at three months from publication, 8 January 2027 on a calendar count. The artifact to have signed off before then is the service-by-service control map with legacy exposure figures for each non-compliant token, because it answers the paragraph 25 question directly: whether the CASP is still providing services in relation to these tokens.

Disclaimer: The information on RegReportingDesk.com is for educational and informational purposes only. It does not constitute legal, regulatory, tax, or compliance advice. Always consult your compliance officer, legal counsel, or the relevant supervisory authority for guidance specific to your institution.