Between MiCAR and MiFID II – ESMA guidelines on the classification of crypto assets as financial instruments

The distinction between MiCAR and MiFID II depends largely on whether a crypto asset qualifies as a financial instrument and, in particular, as a transferable security. In its guidelines on the classification of crypto assets as financial instruments, ESMA has attempted to specify the criteria for this. This article takes up these guidelines, systematically elaborates on the requirements of the regulatory definition of a security, and examines the extent to which ESMA makes a viable contribution to distinguishing between the two regimes.