ESMA has published an opinion on crypto-asset services involving asset-referenced tokens and e-money tokens that do not meet the requirements of MiCA. The opinion is dated 8 October 2026. It is addressed primarily to national competent authorities. Its effect lands on firms: NCAs are told to require remediation of pre-existing exposures as soon as possible and no later than three months after publication. For a MiCA-authorised exchange, broker or custodian, that is the deadline that matters.
What the opinion says
The core expectation is short. CASPs authorised under MiCA should stop providing services connected to non-compliant stablecoins to clients in the EU. “Non-compliant” has a precise meaning. A token is non-compliant where the conditions for a lawful public offer or admission to trading under Title III or Title IV are not met, after taking account of any exemption or transitional arrangement.
The expectation reaches every MiCA service: running a trading platform, exchange, order execution, placing, receiving and transmitting orders, advice, transfers, custody and portfolio management, whether offered alone or together. ESMA grounds this in Article 66(1) of MiCA, the duty to act honestly, fairly and professionally in the best interests of clients. In ESMA’s view the risks of a non-compliant token come from missing issuer-level safeguards rather than from the service, a CASP cannot manage those risks itself, and the result is a presumption that providing any MiCA service for such a token is incompatible with Article 66(1).
That reasoning is broader than the earlier guidance. ESMA says the conclusion does not depend on whether each individual service amounts to an offer to the public or an admission to trading. The opinion leaves the position in Commission Q&A 2404 and ESMA’s earlier public statement unchanged. It also sits alongside, not above, the competences of the EBA and the relevant authorities over ART and EMT issuers.
Why the usual fixes do not work here
Listing teams typically have a standard answer for a token with a regulatory question mark: a risk warning, an extra disclosure, a tick-box acknowledgement. The opinion appears to close that route. In its words, reliance on “warnings, disclosures or client acknowledgements” would “not sufficiently address the concerns identified in this Opinion”. Its reasoning is that MiCA’s issuer protections work as a set rather than one by one, so a disclosure is unlikely to convey what is actually missing.
ESMA gives three reasons for the hard line: the token rules would be circumvented, compliant and non-compliant issuers would compete on different terms, and investors would lose a consistent level of protection. It adds that continued servicing of such tokens hinders NCAs in enforcing white paper quality and marketing communications and in monitoring trading.
For a compliance head, the question therefore looks binary. Either the firm can document a Title III or IV route for the token, or the token moves to the wind-down path. In our reading there is no middle tier where a token stays listed with enhanced warnings.
A risk warning on the trade ticket no longer keeps a non-compliant stablecoin live for EU clients.
The control set and the residual path
ESMA asks NCAs to check that market participants do not maintain, introduce or facilitate client access to non-compliant stablecoins through their services. NCAs should also ensure CASPs put in place technical, contractual and organisational controls that stop such tokens being available in the EU, including controls that prevent clients from acquiring or increasing exposure.
Read as a control inventory, that means three layers. Technical: order-entry blocks on buys, restrictions on inbound deposits that would increase a client’s position, and hard constraints in any managed portfolio. Contractual: terms of service and client agreements that state which tokens are in scope and what the firm will and will not do with them. Organisational: a named owner for the token register, a sign-off step before any ART or EMT goes live, and a periodic re-check of each token’s status.
The opinion does permit a residual path. NCAs may allow a CASP that is not yet compliant to provide strictly limited residual services where needed for an orderly wind-down and to avoid client detriment. Those services are confined to liquidation, conversion, withdrawal, transfer or safekeeping of existing holdings, and must stay time-limited, risk-based and closely supervised. They must not support new acquisitions, promotion, trading or active distribution, and must be clearly communicated to clients. ESMA will monitor how quickly the opinion is applied, working with the NCAs.
What it signals
Two points of interpretation. First, because the opinion is addressed to supervisors, the pace and tone of follow-up will likely differ by NCA; we expect some to write to CASPs directly and others to fold the check into existing MiCA supervision. Second, the three-month window appears to be aimed at legacy exposures rather than new listings; in our reading, a CASP that adds a non-compliant token after publication should not expect a grace period. Neither point is stated in the opinion and both could be overtaken by NCA practice.
What still applies
The earlier Commission Q&A 2404 and ESMA public statement still set out when certain services amount to an offer to the public, a seeking of admission to trading or a placing. The Article 66(1) duty to clients is not new; ESMA has described how it reads that duty in one specific situation. Tokens that meet a Title III or IV route, including through an applicable exemption or transitional arrangement, fall outside the definition of non-compliant. The rest of the firm’s MiCA obligations, from conduct to custody to complaints handling, run on unchanged.
What firms should do
Build the inventory now. List every ART and EMT the firm lists, custodies, transfers, advises on or holds in managed portfolios, including tokens reachable only through a connected service or a third-party venue. Taft’s compliance review is designed to produce that inventory and the gap list against MiCA in one pass.
Document the route for each token. For every entry, record which Title III or IV route is relied on: issuer authorisation, an exemption or a transitional arrangement, with the evidence. Where the answer turns on a legal question, get legal advice; Taft does not provide it.
Switch on the blocks. Buys, inbound deposits that increase exposure and portfolio allocations into non-compliant tokens should be technically prevented, not merely warned against. Update client terms to match.
Agree the residual path with the NCA. If legacy holdings exist, propose a time-bound plan limited to selling, converting, withdrawing, transferring or safekeeping existing positions, and expect the NCA to want to see it.
Tell clients plainly. Clients should know which tokens are affected, what they can still do, and by when.
Keep the evidence. Board or committee sign-off, the token register, the control configuration and the client notices are what a supervisor is likely to ask for first. Taft’s crypto compliance guide sets out how the MiCA obligations fit together for exchanges, brokers and custodians. Taft reviews a CASP’s token inventory and control set against the opinion and writes up what is missing in plain words.
Sources
- ESMA sets out supervisory expectations on services related to unauthorised stablecoins, ESMA
- Opinion on the provision of crypto-asset services in relation to non-MiCA-compliant ARTs and EMTs (ESMA75-113276571-1742), ESMA
Taft does not provide legal advice. Content is for informational purposes only and subject to regulatory guidance.