Art. 123 General investigative powers | MiCA regulation | MiCA

This article grants EBA the power to conduct formal investigations into issuers of significant asset-referenced tokens and significant e-money tokens, directly in support of the supervisory responsibilities assigned to EBA under Article 117.

It sets out a broad toolkit for authorised EBA officials, covering the examination of records, obtaining copies, summoning management and staff for explanations, interviewing consenting third parties, and requesting telephone and data traffic records.

The article also establishes the procedural framework around these powers, including the requirement for written authorisation, the involvement of national competent authorities, and, where national law requires it, court approval for accessing communications data.

Important points:

EBA is empowered to conduct investigations into issuers of significant asset-referenced tokens and significant e-money tokens, with a wide range of information-gathering powers available to its authorised officials.
Issuers of significant asset-referenced tokens and significant e-money tokens are required to submit to EBA-initiated investigations, and non-compliance or the provision of incorrect or misleading information can result in fines or periodic penalty payments under Articles 131 and 132.
Where court authorisation is required under national law to access telephone or data traffic records, the reviewing court is limited to verifying the authenticity of EBA's decision and whether measures are proportionate — it cannot review the necessity of the investigation or access EBA's file.

1. In order to carry out its supervisory responsibilities under Article 117, EBA may conduct investigations into issuers of significant asset-referenced tokens and issuers of significant e-money tokens. To that end, the officials and other persons authorised by EBA shall be empowered to:
  1. examine any records, data, procedures and any other material relevant to the execution of its tasks irrespective of the medium on which they are stored;
  2. take or obtain certified copies of or extracts from such records, data, procedures and other material;
  3. summon and ask any issuer of a significant asset-referenced token or issuer of a significant of e-money token, or their management body or staff, for oral or written explanations of facts or documents relating to the subject matter and purpose of the investigation and to record the answers;
  4. interview any other natural or legal person who consents to be interviewed for the purposes of collecting information relating to the subject matter of an investigation;
  5. request records of telephone and data traffic.
2. A college as referred to in Article 119(1) shall be informed without undue delay of any findings that might be relevant for the execution of its tasks.
1. The officials and other persons authorised by EBA for the purposes of the investigation referred to in paragraph 1 shall exercise their powers upon the production of a written authorisation specifying the subject matter and purpose of the investigation. That authorisation shall also indicate the periodic penalty payments provided for in Article 132 where the required records, data, procedures or any other material, or the answers to questions posed to issuers of significant asset-referenced tokens or issuers of significant e-money tokens, are not provided or are incomplete, and the fines provided for in Article 131, where the answers to questions posed to issuers of significant asset-referenced tokens or issuers of significant e-money tokens are incorrect or misleading.
1. The issuers of significant asset-referenced tokens and issuers of significant e-money tokens are required to submit to investigations launched based on a decision of EBA. The decision shall specify the subject matter and purpose of the investigation, the periodic penalty payments provided for in Article 132, the legal remedies available under Regulation (EU) No 1093/2010 and the right to have the decision reviewed by the Court of Justice.
1. Within a reasonable period before an investigation referred to in paragraph 1, EBA shall inform the competent authority of the Member State where the investigation is to be carried out of the investigation and of the identity of the authorised persons. Officials of the competent authority concerned shall, upon the request of EBA, assist those authorised persons in carrying out their duties. Officials of the competent authority concerned may also attend the investigations upon request.
1. If a request for records of telephone or data traffic referred to in paragraph 1, first subparagraph, point (e), requires authorisation from a court pursuant to applicable national law, EBA shall apply for such authorisation. Such authorisation may also be applied for as a precautionary measure.
1. Where a court in a Member State receives an application for the authorisation of a request for records of telephone or data traffic referred to in paragraph 1, first subparagraph, point (e), that court shall verify whether:
  1. the decision of EBA referred to in paragraph 3 is authentic;
  2. any measures to be taken are proportionate and not arbitrary or excessive.
1. For the purposes of paragraph 6, point (b), the court may ask EBA for detailed explanations, in particular relating to the grounds EBA has for suspecting that an infringement of this Regulation has taken place, the seriousness of the suspected infringement and the nature of the involvement of the person subject to the coercive measures. That court shall, however, not review the necessity for the investigation or demand that it be provided with the information on EBA’s file. The lawfulness of EBA’s decision shall be subject to review only by the Court of Justice following the procedure set out in Regulation (EU) No 1093/2010.

Article 123 General investigative powers

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