Original question
Does Recital 93 of MiCA imply that a crypto-asset transfer offered as part of a crypto-asset service (such as custody and administration or execution of orders on behalf of clients) is to be regarded as a component of such a crypto-asset service and should therefore not be subject to the authorisation requirements under Article 59 of MiCA? Or would such a transfer of crypto-asset still qualify as the separate service of crypto-asset transfer, as defined under Article 3(1), point (26), of MiCA, and be subject to authorisation requirements?
What criteria should be taken into account to determine whether the crypto-asset transfer is a separate service or not?
Please confirm that, if a transfer of crypto-assets is part of a crypto-asset service such as custody and administration or execution of orders on behalf of clients and thus does not constitute the separate service of transfer of crypto-assets, the requirements in Article 82 MiCA apply anyway (including the ESMA guidelines issued according to the mandate in Article 82(2)).
Original language
Answer provided by the European Commission
A crypto-asset service of providing transfer services as defined in Article 3(1), point (26), is a self-standing crypto-asset service referred to in Article 3(1), point (16)(j), along with other crypto-asset services. It follows from the definition of a crypto-asset service provider in Article 3(1), point (15), and Article 59 that a crypto-asset service provider may provide transfer services only if it is allowed to do so in accordance with Article 59.
Therefore, if the provision of a service falls under the definition of providing transfer services, despite being regarded as part of another crypto-asset service, it is subject to Article 59 on authorisation and Article 82 on providing transfer services, including the guidelines developed under Article 82(2).
Disclaimer:
The answers clarify provisions already contained in the applicable legislation. They do not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons, including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before the Union and national courts.