Crypto-asset white paper requirements under MiCA

Under the EU Markets in Crypto-Assets Regulation (MiCA), a crypto-asset white paper is the disclosure document that must accompany most public offers of crypto-assets and most applications for admission to trading. It is not a marketing brochure and it is not approved by any authority, but the people who publish it are liable for what it says. This guide explains when a white paper is required, what it must contain, how it is notified and published, and where projects usually go wrong. Our fee for drafting a white paper is listed on the MiCA crypto licensing page.

The rules below are those of Title II of Regulation (EU) 2023/1114 (EUR-Lex), which covers crypto-assets other than asset-referenced tokens and e-money tokens. Those two kinds of tokens have their own, stricter titles in MiCA and are not covered here. The guide is general information, not legal advice.

When a white paper is required

Article 4(1) of MiCA says that a person may make an offer to the public of such a crypto-asset in the Union only if it is a legal person and has drawn up, notified and published a crypto-asset white paper in accordance with Articles 6, 8 and 9, has prepared and published any marketing communications in line with Articles 7 and 9, and complies with the obligations for offerors in Article 14. Article 5 sets the same basic requirements for a person seeking admission of a crypto-asset to trading on a trading platform.

In short: if you offer a token to the public in the EU, or want it listed on a trading platform, you should expect to need a white paper unless one of the exemptions below clearly applies.

Exemptions from the white paper obligation

Article 4(2) removes the white paper obligations (drawing up, notifying and publishing) for an offer to the public that is:

• made to fewer than 150 natural or legal persons per Member State, acting on their own account;
• for a total consideration in the Union of not more than 1,000,000 euros over a period of 12 months from the beginning of the offer; or
• addressed solely to qualified investors, where the crypto-asset can only be held by qualified investors.

Article 4(3) goes further and takes certain offers out of Title II altogether — for example crypto-assets offered for free, crypto-assets created automatically as a reward for maintaining the ledger or validating transactions, utility tokens giving access to a good or service that already exists or is in operation, and tokens usable only within a limited network of merchants. "Free" has a narrow meaning: an offer is not free if buyers must provide personal data or pay any fee or benefit in exchange.

Two points are often missed. First, the exemptions do not apply once the offeror, or anyone on its behalf, announces in any communication that it intends to seek admission to trading (Article 4(4)). Second, if a white paper is drawn up voluntarily for an exempt offer, Title II applies to it in full (Article 4(8)).

What a white paper must contain

Article 6(1), detailed further in Annex I, requires information about:

• the offeror or the person seeking admission to trading, and the issuer if different;
• the operator of the trading platform, where it draws up the white paper;
• the crypto-asset project;
• the offer to the public or the admission to trading;
• the crypto-asset itself, and the rights and obligations attached to it;
• the underlying technology;
• the risks; and
• the principal adverse impacts on the climate and other environment-related impacts of the consensus mechanism used to issue the crypto-asset.

All of it must be fair, clear and not misleading, without material omissions, and presented in a concise and comprehensible form (Article 6(2)).

Mandatory statements

A MiCA white paper is recognisable by its fixed statements. On the first page it must say, clearly and prominently, that it has not been approved by any competent authority in any Member State and that the offeror is solely responsible for its content (Article 6(3)). It must not contain any assertions about the future value of the crypto-asset (Article 6(4)). It must state clearly that the crypto-asset may lose its value in part or in full, may not always be transferable, may not be liquid, and is not covered by the investor compensation schemes or the deposit guarantee schemes; for a utility token, that it may not be exchangeable for the promised good or service (Article 6(5)).

After the first-page statement comes a statement from the management body confirming that the white paper complies with Title II and that, to the best of its knowledge, the information is fair, clear and not misleading (Article 6(6)). Then comes a summary in brief, non-technical language with the prescribed warnings — among them that the white paper is not a prospectus under Regulation (EU) 2017/1129 (Article 6(7)). The white paper must also show the date of its notification and a table of contents (Article 6(8)), be written in an official language of the home Member State or a language customary in international finance (Article 6(9)), and be available in a machine-readable format (Article 6(10)).

Notification, not approval

The white paper is notified to the competent authority of the home Member State — in Estonia the Financial Supervision Authority. Competent authorities do not approve white papers before publication (Article 8(3)). The notification must include an explanation of why the crypto-asset is not excluded from MiCA and is neither an e-money token nor an asset-referenced token (Article 8(4)), and it must reach the authority at least 20 working days before the white paper is published (Article 8(5)). If you intend to offer the crypto-asset in other Member States, the notification also lists those host Member States and the starting date (Article 8(6)).

The white paper and any marketing communications are then published on the offeror's publicly accessible website, in any event before the start of the offer or the admission to trading (Article 9). They must be modified whenever a significant new factor, material mistake or material inaccuracy arises that could affect the assessment of the crypto-asset (Article 12).

Marketing communications

Marketing communications must be clearly identifiable as such, fair, clear and not misleading, and consistent with the white paper (Article 7). A campaign that promises returns the white paper does not mention, or that uses the white paper's absence of approval as a sign of quality, breaks these rules.

Liability

Because nobody approves the white paper, the responsibility sits with its authors. Article 15 makes the offeror (or the person seeking admission, or the platform operator) and the members of its management body liable to holders for losses caused by information in the white paper that is not complete, fair or clear, or that is misleading, and contractual exclusions of that liability have no legal effect. A white paper is therefore worth drafting carefully, with the business, technical and legal teams at the same table.

Common mistakes

• Price talk. Any statement about the future value of the token, other than the required risk warnings, is not allowed.
• Wrong token type. A token that references a basket of assets or a single currency may be an asset-referenced token or an e-money token, with entirely different rules. The Article 8(4) explanation forces you to address this.
• Missing sustainability information. The climate and environment disclosure on the consensus mechanism is mandatory, not optional.
• Late notification. The 20-working-day period before publication is a hard lower limit.
• Inconsistent marketing. Social media posts and websites are marketing communications and must match the white paper.

White paper and CASP authorisation

A white paper and a crypto-asset service provider authorisation are different things. The white paper concerns a specific crypto-asset and its offer or admission to trading; the authorisation concerns a company that provides crypto-asset services to clients. A project may need one, the other, or both. A trading platform operator, for example, is a Class 3 service provider and may also have to ensure that a white paper exists for the crypto-assets it admits. Our guide to the MiCA CASP licence in Estonia covers the authorisation side.

Frequently asked questions

Related guides

• MiCA CASP licence in Estonia
• MiCA licence classes and capital