Legal Digest January

Welcome to the first edition of our Legal Digest in 2024, where we dissect the intricacies of asset tokenization regulations.

Throughout this series, we aim to navigate the complexities of transformative legislation, shedding light on its impact on the tokenization of assets and exploring the implications for investors, financial entities, and the broader market. Join us as we uncover the nuances of this evolving regulatory framework and unravel its implications in the ever-evolving world of asset tokenization.

The Belgian Presidency’s confidential note, circulated on January 10, outlines a potential landing zone, emphasizing an incremental approach during the January 16-17 Political Trilogues. Discord arises between the Council General Approach and the European Parliament, particularly regarding beneficial ownership and thresholds. Simultaneously, the Basel Committee on Banking Supervision proposes amendments to crypto-asset standards, calling for enhanced due diligence by banks exposed to stablecoins.

Developments in the Ongoing Negotiations for Anti-Money Laundering Package

On January 10, the Belgian Presidency circulated a confidential note proposing a landing zone for the Anti-Money Laundering (AML) Package, focusing on the AML Regulation (AMLR) and the Sixth AML Directive (AMLD6). Seeking a political agreement during the January 16-17 Political Trilogues, the Presidency emphasizes an incremental approach, building on previous negotiations. Key discussions include beneficial ownership and cash thresholds for Customer Due Diligence within the framework of the AMLR, and beneficial ownership registers, high-value assets, and assets in free trade zones as part of the AMLD6. 

The Presidency suggests adhering to the Council General Approach, while the European Parliament prioritizes increasing identified beneficial owners. The EP may accept the General Approach’s multiplication method with a lower overall threshold. Regarding foreign entities, the EP proposed registration for those owning stakes in an EU public body, but the Presidency recommends rejection. Retroactive registration of beneficial ownership for foreign entities owning real estate is discussed, with the Presidency proposing a shorter lookback period to January 2014. A Council Working Party met on January 11 to discuss positions with Member States. 

Additionally, a joint hearing and vote on January 30 will determine the seat of the Anti-Money Laundering Authority (AMLA). 

EBA Holds Public Hearing on MiCA Consultations

The EBA conducted a public hearing on January 11, focusing on the second batch of MiCA consultations, including guidelines on internal governance for issuers of asset-referenced tokens (ARTs) and regulatory technical standards (RTS) on conflict of interest policies. The guidelines cover risk management, ICT risk, management body responsibilities, and more. Conflict of Interest guidelines emphasize preventing reputational damage and ensuring independent oversight. Remuneration policies, applicable to significant ART issuers, mandate a ratio between fixed and variable elements. Consultation responses are due on various dates in January and February 2024, with Conflict-of-Interest responses expected by March 7, 2024. 

BCBS Consultation: Proposed Amendments to Crypto-Asset Standards for Banks

BCBS has released a consultation paper seeking input on proposed amendments to its standard regarding banks’ exposure to crypto-assets. The suggested adjustments aim to broaden the criteria for the composition of reserve assets supporting stablecoins. This expansion covers aspects like credit quality, maturity, and liquidity of reserve assets. The proposed requirements will determine the eligibility of stablecoins, to which banks may be exposed, for inclusion in the Group 1b category of crypto-assets, entailing preferential regulatory treatment. Additionally, banks would need to conduct due diligence to ensure a comprehensive understanding of the stabilization mechanisms of the stablecoins they are exposed to, assessing their effectiveness. The proposals also mandate banks to perform statistical or other tests to demonstrate the stable relationship of the stablecoin to the reference asset. The consultation includes suggested technical amendments and a set of FAQs to foster a uniform understanding of the crypto-asset standard. 

ECON Releases Draft Report Proposing Amendments to Financial Data Access Framework Regulation (FiDA)

The ECON has released a draft report discussing the proposed Regulation on a framework for Financial Data Access (FiDA). The report outlines the suggested amendments by the ECON Rapporteur to the European Commission’s draft text. Key amendments focus on enhancing customer trust by specifying the types of personal data available under FiDA and restricting non-EU entities from benefiting as financial information service providers. The amendments also aim to promote innovation by emphasizing a customer’s data access right rather than data sharing, aligning compensation provisions with the market-driven approach of the Data Act. Additionally, improvements in interoperability and supervision are proposed, involving closer alignment with GDPR, the Data Act, and Data Governance Act, along with reinforcing the role of ESA in relation to NCAs. 

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