Global Trustee and Fiduciary Services Bite-Sized Issue 8 2024

3 QUICK LINKS AIFMD CBDC CRYPTOASSETS CSDR FINTECH FSB FUND LIQUIDITY MAR MIFID II/MIFIR OPERATIONAL RESILIENCE REMUNERATION SUSTAINABLE FINANCE/ ESG UCITS ASIA PACIFIC EUROPE IRELAND NORTH AMERICA UNITED KINGDOM Global Trustee and Fiduciary Services Bite-Sized | Issue 8 | 2024 Digital Assets as Personal Property – Supplemental Report and Draft Legislation On 30 July 2024, the Law Commission of England and Wales published a supplemental report and draft Bill that, if implemented, would confirm the existence of a third category of personal property into which certain digital and other assets could fall. The Law Commission’s digital assets report in June 2023 concluded that certain digital assets, including crypto-tokens and non-fungible tokens (NFTs), are capable of attracting personal property rights. However, because they are fundamentally different both from physical assets, and from rights-based assets like debts and financial securities, they do not fit within traditional categories of personal property. The Law Commission recommended that legislation should confirm the existence of a “third” category of personal property. The draft Bill makes clear that a thing is not prevented from being the object of personal property rights merely because it is neither a thing in action nor a thing in possession. This reflects the trajectory of recent case law, but removes the lingering uncertainty that remains in the absence of a definitive statement from the appellate courts. The Law Commission consulted on the draft Bill in February 2024. The wording, but not the substance, of the draft has been amended in response to points raised by consultees. Link to Supplemental Report and Draft Bill here ESAs Consult on Guidelines Under the Markets in Crypto-Assets Regulation On 12 July 2024, the three European Supervisory Authorities (EBA, EIOPA and ESMA – the ESAs) published a consultation paper on Guidelines under MiCA, establishing templates for explanations and legal opinions regarding the classification of crypto-assets along with a standardised test to foster a common approach to classification. To support market participants and supervisors in adopting a convergent approach to the classification of crypto-assets, the Guidelines propose a standardised test, as well as templates for explanations and legal opinions that provide descriptions of the regulatory classification of crypto-assets in the following cases: • Asset-referenced tokens (ARTs): The white paper for the issuance of ARTs, which contains comprehensive information about the crypto asset, must be accompanied by a legal opinion that explains the classification of the crypto asset – in particular, the fact it is not an EMT nor a crypto-asset that could be considered excluded from the scope of MiCA • Crypto-assets that are not ARTs or EMTs under MiCA: The white paper for the crypto-asset must be accompanied by an explanation of the classification of the crypto asset – in particular, the fact it is not an EMT, ART or crypto-asset excluded from the scope of MiCA. The deadline for the submission of comments is 12 October 2024. Link to the Consultation Paper here NewQ&As Available On 12 July 2024, ESMA updated the following MiCA Questions and Answers: • ESMA_QA_2067: Treatment of staking services in MiCA • ESMA_QA_2068: Grandfathering clause and applicable AML laws • ESMA_QA_2069: Interaction between Article 60 notifications and the CASP transitional phase • ESMA_QA_2070: Simplified authorisation procedures • ESMA_QA_2071: Crypto-asset transfers as component of another crypto-asset service or as a separate crypto-asset transfer service • ESMA_QA_2220: Entities not authorised as CASPs by the end of the transition period. • ESMA_QA_2221: Entities who have not applied for, or whose application for authorisation as CASPs has been refused by the end of the transition period. Link to Q&As here