Digital assets: the AMF amends its General Regulation and its policy on DASP in light of enhanced registration and the MiCA Regulation

The changes adopted by the AMF have two main objectives:

• to incorporate into the General Regulation and its policy the provisions applicable to DASPs subject to "enhanced" registration. This regime will become mandatory from January 1, 2024 for new players wishing to provide the four services subject to mandatory registration;
• align the requirements for DASPs licence with those for European authorisation for crypto-asset service providers (CASPs) under the MiCA Regulation, and allow a fast track procedure to be implemented towards CASP authorisation.

On a subsidiary note, the amendments to the policy applicable to DASPs are intended to extend it to take account of new issues raised by market participants and changes in business models.

Introduction of the “enhanced” DASP registration

A new Article 721-1-2 of the AMF General Regulation, which will come into force on January 1, 2024, has been created to extend the provisions of DASP licence to DASPs subject to enhanced registration, in the various areas now covered by enhanced DASP registration: adequate security and internal control systems, systems for managing conflicts of interest, clear, accurate and non-misleading information, public pricing policies, specific custody provisions (segregation of client assets vs. own assets), prohibition on using client assets without their express prior consent, agreement signed with clients, resilient and secure IT system, a ban on using client assets without their express prior consent, a signed agreement with clients, and a resilient and secure IT system.

The amendments to the AMF General Regulation and to instructions DOC-2019-23 (preparation of a registration and licence file) and DOC-2019-24 (cybersecurity system of requirements) will come into force on January 1, 2024 but must be taken into account in the file by applicants for enhanced DASP registration

As a reminder, DASPs that obtained a simple registration before January 1, 2024 benefit from a "grandfather" clause and continue to be subject to the framework applicable before this date.

New provisions, applicable from January 1, 2024, are also included in position-recommendation DOC-2020-07 (Questions and answers relating to the PSAN regime), in addition to the update made on July 19, 2023.The amended forms relating to this enhanced registration will be available in September 2023.

Alignment of DASP licence with MiCA Regulation

Most of the amendments to Book VII of the General Regulation aim to align, as from January 1, 2024, the provisions applicable to licenced DASPs with the provisions of Title V of the MiCA Regulation applicable to providers of services for crypto-assets (CASPs).

The provisions introduced to align the requirements for DASP licence with those for MiCA authorisation will therefore apply indirectly to enhanced registered DASPs.

The amendments to the AMF General Regulation (Book VII) will apply from January 1, 2024. They will apply to licences issued on or after that date. DASPs that have obtained optional licence before that date will have to comply with all the legislative and regulatory provisions (including the provisions of Book VII of the AMF General Regulation) when it comes into force January 1, 2024 (question 3.3 of the DASPs Q&A).

Instruction DOC-2019-23 on the rules applicable to DASPs has been amended to bring the documents required for enhanced registration and optional licence largely into line with the requirements set out in the MiCA Regulation.

Instruction DOC-2019-24 on the cybersecurity system of requirements has been amended to take account of the introduction, by the DDADUE Law, of cybersecurity requirements for DASPs subject to enhanced registration.