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Explanation of the AFM on the ESA guidelines

The text blocks below can be unfolded. This contains an explanation of how the AFM applies specific ESA guidelines and to which target group they apply.

Joint EBA and ESMA Guidelines on the suitability assessment of shareholders and members, whether direct or indirect, with qualifying holdings in issuers of asset-referenced tokens and in crypto-asset service providers 

These joint guidelines concern the National Competent Authorities (NCAs) suitability assessment of shareholders or members with qualifying holdings in supervised entities under Regulation (EU) 2023/1114 (MiCA) in order to promote uniformity in methodologies across financial sectors.

What is the purpose of the guidelines?

The guidelines concern broader assessment criteria for acquisitions or increases in qualifying holdings. These include five key suitability standards and prior notification to competent authorities, mirroring processes established in MiFID II and in CRD. The guidelines ensure consistency with existing frameworks, particularly the Joint European Supervisory Authorities Guidelines for assessing qualifying holdings. They do not introduce new criteria but reference to established methodologies, promoting uniformity across financial sectors.

Key elements addressed include assessing the repute of shareholders, the legitimacy of funding sources, and the identification of indirect.

How does the AFM apply the guidelines in its supervision?

DNB is mandated to assess holders of qualifying holdings in CASPs. However, the AFM will take these guidelines in account in cases such as the rejection of a license application. In such a situation, the AFM will adopt DNB’s verdict.

Which financial undertakings do the guidelines apply to?

Joint Guidelines lay down the methodology that NCAs should use for the assessment of the suitability of the shareholder or member that has qualifying holdings, whether direct or indirect;
  • in an applicant issuer seeking for an authorisation under Article 18 of MiCA, in accordance with the mandate set out by Article 21(3) of that Regulation
  • in an applicant CASP seeking for authorisation under Article 62 of MiCA, in accordance with the mandate set out by Article 63(11) of that Regulation

And for the assessment of the suitability of a proposed acquirer of direct or indirect qualifying holdings:

  • in an issuer of ARTs authorised under Article 21 of MiCA, in accordance with the criteria set out by Article 42(1), points (a) to (e) of that Regulation;
  • in a CASP authorised under Article 63 of that Regulation, in accordance with the criteria set out by Article 84(1), points (a) to (e) of that Regulation.

When will the guidelines come into effect?

These guidelines apply from 4 February 2025.

More information

Read the full document.

Joint EBA and ESMA Guidelines on the suitability assessment of members of management body of issuers of asset-referenced tokens and of crypto-asset service providers 

These joint guidelines outline the criteria National Competent Authorities (NCAs) must take into consideration when assessing the suitability of management body members of issuers of asset-referenced tokens (ARTs) and crypto-asset service providers (CASPs) under Regulation (EU) 2023/1114 (MiCA).

What is the purpose of the guidelines?

The guidelines emphasize the importance of strong governance for issuers of asset-referenced tokens (ARTs) and crypto-asset service providers (CASPs) to build trust in the financial system and support the crypto ecosystem. They outline criteria for assessing the suitability of management body members, focusing on knowledge, skills, experience, and integrity. This assessment must be proportionate to the issuer’s business model and associated risks and should occur both at the time of authorization and continuously thereafter.

How does the AFM apply the guidelines in its supervision?

AFM will assess that the applications of members of the management body of issuers of ART or of a CASP have to be of sufficiently good repute and possess, individually and collectively, the appropriate knowledge, skills and experience to manage the applicant issuer. In particular, they should not have been convicted of offences relating to money laundering or terrorist financing or of any other offences that would affect their good repute. Members of the management body of issuers of ARTs or CASPs must also demonstrate that they are capable of committing sufficient time to effectively perform their duties. Failure to meet this requirement is a ground for refusal of authorization, where there are objective and demonstrable grounds that the members of their management body do not meet the requirements.

Which financial undertakings do the guidelines apply to?

These Guidelines apply at authorization and on an ongoing basis to competent authorities, as defined in Article 3(1) point (35) (a) of MiCA, issuers of ARTs and CASPs, in accordance with Articles 34(2) and 68(1) of MiCA with regard to the assessment of suitability of members of the management body of an applicant issuer of ARTs, or an applicant CASP.

When will the guidelines come into effect?

These guidelines apply from 4 February 2025.

More information

Read the full document.