Advice on crypto-assets: the AMF updates its doctrine in relation to FIAs
With the entry into application of the MiCA Regulation and the end of its transitional period, the provision of the service of advice on crypto-assets is now subject to specific authorisation and compliance with the rules laid down at European level. In its doctrine, the Autorité des Marchés Financiers (AMF) specifies the situations in which a financial investment advisor (FIA) is required to obtain crypto-asset services provider (CASP) status in order to provide the service of advice on crypto-assets.
Background
In 2022, the AMF specified the rules applicable to FIAs when they acted in relation to digital assets (now called crypto-assets). At that time, providing advice on digital assets to investors was subject to optional approval. Thus, when an FIA had obtained approval as a digital asset services provider (DASP) to provide this service of advice o, digital assets to investors, said activity was then governed by the rules relating to this service. In the absence of such approval, this activity was considered to fall under ‘other wealth management advice activities’ and remained subject to compliance with the organisation and conduct of business rules of the FIA regime.
Under the MiCA Regulation, providing the service of advice on crypto-assets is now subject to mandatory authorisation at the European level, as a CASP. This authorisation can be obtained by the issuance of an authorisation, or, for certain entities that are already authorised, particularly investment services providers, by a notification procedure. FIAs are not eligible for this procedure.
The entry into application of this new MiCA regime and the end of the transitional period now render the clarifications provided in 2022 obsolete.
As specified in Article 3 1.24) of Regulation (EU) 2023/1114, the service of advice on crypto-assets is defined as ‘offering, giving or agreeing to give personalised recommendations to a client, either at the client’s request or on the initiative of the crypto-asset service provider providing the advice, in respect of one or more transactions relating to crypto-assets, or the use of crypto-asset services’. The scope of advice on crypto-assets is broader under MiCA than that of investment advice under MiFID II, which covers transactions in financial instruments. Advice on crypto-assets includes advice on the use of crypto-asset services. Consequently, providing it requires compliance with the new requirements under MiCA.
Finally, ESMA recently published a Q&A on the perimeter of the advice service under MiCA.
Clarifications provided by the AMF
In response to the need for clarification, expressed in particular by FIAs, the AMF is adding a new Q&A to its Position-Recommendation DOC-2006-23. On the one hand, this relays ESMA’s Q&A from which it is taken and, on the other, supplements it with non-exhaustive examples of situations in which an FIA does or does not need CASP status.
It outlines the criteria to be taken into consideration when defining a personalised recommendation to fall within the perimeter of advice on crypto-assets under MiCA and provides examples of advice on crypto-assets.
Conversely, it cites, among the situations in which CASP authorisation is not necessary, on the one hand, the dissemination of information relating to crypto-assets or CASPs, which is not personalised and is intended for the public, and on the other hand, the provision of advice on financial instruments, even if the underlying assets are crypto-assets (AIFs, crypto-asset-linked debt securities, etc.).
