When is a white paper required under MiCAR – Applicability and Exceptions

The EU Markets in Crypto-Assets Regulation (MiCAR) introduces a general obligation to draw up, notify and publish a white paper. Its purpose is to protect prospective retail holders of crypto-assets by ensuring they receive fair, clear and not misleading information. The white paper must outline the characteristics, functions and risks of the crypto-assets.

The white paper obligation arises in two primary cases:

  1. When crypto-assets are offered to the public (Art. 4, 16 and 48 MiCAR);
  2. When crypto-assets are admitted to trading on a trading platform for crypto-assets (Art. 5, 16 and 48 MiCAR).


A public offer refers to any communication to persons – regardless of the form or medium – that presents sufficient information about the terms of the offer and the crypto-assets to enable prospective holders to decide whether to purchase those crypto-assets. This includes any publication, such as website content, that provides enough detail to support an investment decision.

Services provided by a crypto-asset service provider (CASP) can also qualify as an offer to the public. As a consequence the CASP must ensure that the crypto-assets offered in connection with such services comply with MiCAR's white paper requirements. See more in our Blogpost: Beyond Hyperlinks: MiCAR Whitepaper Compliance for CASPs.

Crypto-assets Other than ARTs or EMTs

Offerors and persons seeking admission to trading of crypto-assets other than asset-referenced tokens (ARTs) or e-money tokens (EMTs) are required to prepare a white paper for the relevant crypto-asset.

Before making any offer to the public in the Union or before admitting such crypto-assets to trading, they must notify the white paper to the competent authority. The authorities are not required to approve such a white paper before its publication. 

Exemptions

The obligation to publish a white paper for crypto-assets other than ARTs or EMTs does not apply in the following cases:

  • The offer is made to fewer than 150 persons per Member State.
  • The offer is addressed solely to qualified investors where the crypto-assets can only be held by such qualified investors.
  • The total consideration of the offer does not exceed EUR 1.000.000 over a period of 12 months.
  • The crypto-asset is offered for free.
  • The crypto-asset is automatically created as a reward for the maintenance of the distributed ledger or the validation of transactions.
  • The offer concerns a utility token providing access to a good or service that exists or is in operation;
  • The crypto-asset may be used exclusively in exchange for goods and services in a limited network of merchants with contractual arrangements with the offeror.


If a white paper is published voluntarily for a crypto-asset that would otherwise be exempt, the full provisions of Title II of MiCAR apply. This includes all requirements related to content, fairness, marketing, and liability.

Asset-referenced Tokens

Offerors and persons seeking admission to trading of asset-referenced tokens are always required to prepare a white paper for the relevant crypto-asset. The white paper must be submitted to the competent authority for approval prior to publication.

MiCAR does not provide the same exemptions for ARTs as it does for “other” crypto-assets. Although the white paper must still be submitted to the competent authority, MiCAR exempts it from prior approval if one of the following conditions is met:

  • over a period of 12 months, calculated at the end of each calendar day, the average outstanding value of the asset-referenced token issued by an issuer never exceeds EUR 5.000.000, or
  • the public offering is addressed solely to qualified investors and the asset-referenced token can only be held by such qualified investors.


E-Money Tokens

Offerors and persons seeking admission to trading of e-money tokens are always required to prepare a white paper for the relevant crypto-asset. Before making any offer to the public in the Union or before admitting such tokens to trading, they must submit the white paper to the competent authority.

MiCAR does not provide any exemptions for EMTs comparable to those available for “other” crypto-assets. The obligation to prepare, notify and publish a white paper always applies. 

White Paper Updates

The crypto-asset white paper must be published on the issuer's website and is subject to continuous updating in line with any intended changes to the issuer's business model. The amended white paper must be submitted to the authority at least seven working days prior to publication. Older versions of the white paper and marketing communications must remain publicly available on the offeror's website for at least ten years.

Marketing Materials

All marketing materials must also comply with MiCAR’s transparency standards. They must be clearly identifiable as marketing, fair, clear, and not misleading, and fully consistent with the information provided in the white paper. In addition, they must contain certain disclaimers and statements.

Sanctions for non-Compliance

The white paper requirements under MiCAR are not merely formalities – they are enforceable legal obligations. Non-compliance may result in severe consequences, including the suspension or prohibition of a public offer or trading admission, reputational damage through public warnings, and significant administrative fines up to EUR 700,000.

In addition, civil liability rules apply to offerors and persons seeking admission to trading and to the members of their management body for the information provided in the crypto-asset white paper.

Given the legal and financial exposure, it is important to involve legal counsel early in the white paper drafting process to ensure full compliance with the formal content, risk disclosures, and consistency requirements under MiCAR. 

CERHA HEMPEL provides tailored legal support throughout the entire white paper process – from establishing the issuer and developing token terms, to drafting the white paper. We manage the implementation of regulatory improvement orders and provide clear guidance on the classification of regular crypto-assets, as well as detailed legal opinions for asset-referenced and e-money tokens. Our service also includes handling all communications with the Austrian FMA ensuring full regulatory compliance at every stage.

Further details on our MiCAR advisory packages and fee structure can be found in our current MiCAR white paper overview.