Art. 42 Content of the assessment of proposed acquisitions of issuers of asset-referenced tokens | MiCA regulation | MiCA

This article directly supports Article 41, which sets out the notification and assessment process for proposed acquisitions of qualifying holdings in issuers of asset-referenced tokens.

Article 42 defines the substance of that assessment — specifically, the criteria competent authorities must use when evaluating whether a proposed acquisition should be approved or opposed.

The criteria cover the acquirer's reputation, the fitness of those who will run the business post-acquisition, the acquirer's financial soundness, the issuer's ongoing ability to comply with the regulation, and whether there are grounds to suspect money laundering or terrorist financing.

The article also places a firm limit on Member States, preventing them from adding economic or market-based conditions to the assessment beyond what this regulation prescribes.

EBA, in cooperation with ESMA, is tasked with developing the technical standards that detail the information requirements underpinning the assessment.

Important points:

Competent authorities are required to assess proposed acquisitions against five specific criteria, and may only oppose an acquisition where reasonable grounds exist based on those criteria or where information provided is incomplete or false.
Member States are prohibited from imposing additional prior conditions or allowing their competent authorities to assess acquisitions on the basis of economic needs of the market.
EBA, in close cooperation with ESMA, is required to develop regulatory technical standards specifying the detailed information needed to carry out the assessment.

1. When performing the assessment referred to in Article 41(4), the competent authority shall appraise the suitability of the proposed acquirer and the financial soundness of the proposed acquisition referred to in Article 41(1) against all of the following criteria:
  1. the reputation of the proposed acquirer;
  2. the reputation, knowledge, skills and experience of any person who will direct the business of the issuer of the asset-referenced token as a result of the proposed acquisition;
  3. the financial soundness of the proposed acquirer, in particular in relation to the type of business envisaged and pursued in respect of the issuer of the asset-referenced token in which the acquisition is proposed;
  4. whether the issuer of the asset-referenced token will be able to comply and continue to comply with the provisions of this Title;
  5. whether there are reasonable grounds to suspect that, in connection with the proposed acquisition, money laundering or terrorist financing within the meaning of, respectively, Article 1(3) and (5) of Directive (EU) 2015/849 is being or has been committed or attempted, or that the proposed acquisition could increase the risk thereof.
1. The competent authority may oppose the proposed acquisition only where there are reasonable grounds for doing so based on the criteria set out in paragraph 1 of this Article or where the information provided in accordance with Article 41(4) is incomplete or false.
1. Member States shall not impose any prior conditions in respect of the level of qualifying holding that is required to be acquired under this Regulation nor allow their competent authorities to examine the proposed acquisition in terms of the economic needs of the market.
1. EBA, in close cooperation with ESMA, shall develop draft regulatory technical standards specifying the detailed content of the information that is necessary to carry out the assessment referred to in Article 41(4), first subparagraph. The information required shall be relevant for a prudential assessment, proportionate and adapted to the nature of the proposed acquirer and the proposed acquisition referred to in Article 41(1).
2. EBA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 30 June 2024.
3. Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.