MiCA or MiFID: Your Token's Rights Decide, and the EU Has Not Agreed Where the Line Is
A transferable token with share or bond rights falls under MiFID II, not MiCA. On 24 September 2026 the EBA said the line is still unclear. What to do now.
Executive Summary
If a token carries the rights of a share or a bond and can be transferred, it is a financial instrument under MiFID II, and MiCA does not apply to it (MiCA Article 2(4)(a)). Putting the token on a ledger changes nothing about that. What the ledger changes is how easy it is to mislabel one.
On 24 September 2026 the European Banking Authority (EBA) told the European Commission that the line between the two regimes is still not clear enough: one Member State may treat a token as a financial instrument while another treats the same token as an asset-referenced token. For an issuer, the first legal question becomes “which document set do we owe, and on what written analysis”.
This is general information, not legal advice. Where we draw a conclusion, we say “by our reading”.
Key Takeaways
- Rights decide. A transferable token with share-equivalent or bond-equivalent rights is a MiFID II financial instrument, outside MiCA.
- A whitelist alone does not take a token out of the securities category.
- The EBA says the boundary is not sufficiently clear and asks the Commission to harmonize the definition of financial instrument.
- Nothing has changed in law yet. The MiCA review is open and its outcome is unknown.
Two Tokens, Same Chain
Take two tokens on the same blockchain. The first gives holders dividends, a vote on corporate decisions and a claim on liquidation proceeds, and it is transferable. The second gives access to the issuer’s software service for a year and nothing else. The chain is identical. The regimes are not.
By our reading, the first is a transferable security under MiFID II, so MiCA steps aside. The second is the kind of token MiCA calls a utility token, a crypto-asset “only intended to provide access to a good or a service supplied by its issuer” (Article 3(1), point 9), and even that label has to survive the rest of the classification.
Now change one feature at a time. Add a revenue share to the second token, and its investment features take precedence over the utility label. Put the first token behind a whitelist, and it is still a candidate security. Reduce its governance to a vote on protocol fees, and ESMA says that is not share-equivalent. One right moves a token across the line; the chain never enters the analysis.
Why This Matters Now
On 20 May 2026 the Commission opened a consultation on how MiCA works, with a public track and a targeted track. On 24 September 2026 the EBA published its response to the targeted track. The review outcome is not known at the time of writing, and nothing below is a changed rule. It is a regulator’s position in a consultation.
The stake for the issuer is the document set. The Commission’s consultation question lists MiFID, MiFIR, MAR and the Prospectus Regulation as the sectoral legislation for financial instruments. On the MiCA side, Article 4(1) requires, among other conditions, a white paper that has been drawn up, notified and published before an offer to the public of most crypto-assets. Choosing the wrong side is not a drafting error. It is a different file.
By our reading, the EBA response is a warning about structuring, not only a request for tidier definitions. It says some proposed asset-referenced tokens appear structured to avoid the stricter rules for financial instruments and e-money tokens, for example crypto-assets that reference predominantly a financial instrument with only a marginal reference to an official currency. A design built to land on the lighter side of the line is the design a regulator is already reading for.
How the Law Draws the Line
MiCA (Regulation (EU) 2023/1114, published 9 June 2023) defines a crypto-asset in Article 3(1), point 5, as a digital representation of a value or of a right that can be transferred and stored electronically using distributed ledger technology or similar technology. That is wide, so Article 2(4) carves out crypto-assets that qualify as financial instruments, deposits, funds (except e-money tokens), securitisation positions, insurance and certain pension products. Article 2(3) excludes crypto-assets that are unique and not fungible.
Recital 9 gives the reason: “same activities, same risks, same rules”. So the question is never “is this on a blockchain?” It is “does this token meet the definition of a financial instrument?” That definition lives in MiFID II (Directive 2014/65/EU). Article 4(1), point 15, defines a financial instrument by reference to Section C of Annex I, which lists transferable securities and units in collective investment undertakings, among others. Point 44 defines transferable securities as classes of securities negotiable on the capital market, other than instruments of payment, and names shares and bonds among them.
MiCA Article 2(5) asked the European Securities and Markets Authority (ESMA) for guidelines on qualifying crypto-assets as financial instruments by 30 December 2024. ESMA’s final report is dated 17 December 2024. Under Article 97, a national authority can also ask ESMA, EIOPA or the EBA for an opinion on classification. An issuer cannot.
There is a structural reason the line stays blurry. MiFID II is a Directive applied through national law, and ESMA itself notes that “share” is not defined by EU law: in some Member States shares may lack dividend or voting rights and still be shares. A boundary drawn with a term that Member States read differently will not be drawn identically everywhere.
How ESMA Tests the First Token
ESMA starts from two principles: the technological format is not a determining factor, and tokenization of a financial instrument does not change its classification (Guideline 1). Substance wins over form, so the issuer’s label decides nothing. National authorities and market participants must make every effort to comply with the guidelines.
For transferable securities (Guideline 2), ESMA reads the MiFID II definition as three cumulative conditions:
- Not an instrument of payment. A token used as a medium of exchange is outside the category.
- A class of securities. Interchangeable tokens from one issuer that give the same rights form a class. The rights must be equivalent to those of shares (a stake in the company, votes on corporate decisions, dividends, liquidation proceeds) or of bonds (interest, repayment of principal). Governance limited to protocol upgrades and fee adjustments does not count.
- Negotiable on the capital market. The abstract possibility of transfer is sufficient, even with no existing market and even during a temporary lock-up. A footnote adds that a whitelist requirement should not on its own prevent a token from being a transferable security.
Almost every token on a ledger can be transferred, so the second condition usually decides the case: what rights does the holder actually get? ESMA’s examples are illustrative, not definitive classifications.
Edge Cases That Trip Issuers
Utility tokens bought for profit. A token with no financial return comparable to a financial instrument is not a transferable security even if buyers expect its value to rise. What matters is whether it carries rights over the company’s profits, capital or liquidation surplus, or votes on corporate decisions.
Hybrids. ESMA tells authorities to put the issuer’s label second and the token’s inherent attributes first, especially where functions may evolve over the life cycle. A pure access pass at launch that later gains a revenue share has a new answer.
Tokens that track something. Tokens that follow underlying assets and give rights comparable to acquiring or selling transferable securities are, in ESMA’s words, a strong indication of securities-equivalent rights.
Pooled investment. A token can be a unit in a collective investment undertaking where capital is pooled from several investors, invested under a defined investment policy, for a pooled return. That is a separate MiFID II category and brings fund rules into the picture.
Tokens only the issuer accepts. ESMA says tokens that cannot be transferred to other holders and are accepted only by the issuer or offeror fall outside MiCA. A closed-loop voucher is a different object from a tradeable token.
Fractions and “NFTs”. A unique identifier does not make a token unique and non-fungible for MiCA. If all fractions of an NFT can be recombined into the original, they may not qualify independently.
What the EBA Told the Commission
On the boundary question, the EBA response says the following, in its own reading:
- Tokenized financial instruments should stay outside MiCA and under MiFID, MiFIR and the wider securities rules, because tokenization does not, per se, change the regulatory classification of an asset.
- The distinction between MiFID financial instruments and MiCA crypto-assets is not sufficiently clear, even with ESMA’s guidelines. The EBA ticked the box that says clarification is needed.
- The cause is that “financial instrument” is not fully harmonized in EU law. The EBA asks the Commission to harmonize it at the earliest legislative opportunity.
- As at 1 September 2026, it counted 39 e-money tokens issued under MiCA and no asset-referenced tokens authorized.
By our reading, the last figure is the quiet signal. The category much of the boundary debate is about has no authorized member yet, while structures aimed at it are already visible to the EBA. An issuer who plans around a narrow reading of the boundary is betting on a definition the regulator itself is asking to change.
Token Feature to Regime
A screening aid built from the sources below. It does not replace a legal classification.
| Token feature | Likely regime | Basis |
|---|---|---|
| Interchangeable, transferable tokens with share-equivalent or bond-equivalent rights | Transferable security, MiFID II; outside MiCA | MiCA Art. 2(4)(a); ESMA Guideline 2 |
| Units in a collective investment undertaking | Financial instrument, MiFID II Annex I Section C; outside MiCA | MiCA Art. 2(4)(a); ESMA Guideline 4 |
| Whitelist-only transfers on a share-like token | Whitelist alone does not remove it from the securities category | ESMA Guideline 2, footnote 41 |
| Investment return plus platform access | Financial-instrument features take precedence | ESMA Guideline 9 |
| Access to the issuer’s service only, no financial return | MiCA utility token, subject to the rest of the classification | MiCA Art. 3(1)(9); ESMA Guideline 2 |
| Stable value by reference to one official currency | E-money token under MiCA | MiCA Art. 3(1)(7) |
| Stable value by reference to other values, rights or a basket | Asset-referenced token under MiCA, unless a financial instrument | MiCA Art. 3(1)(6); EBA response |
A token that references a commodity or real estate raises its own questions, including whether it becomes an asset-referenced token. That is the subject of a later article in this series.
The Two Regimes Side by Side
| MiFID side | MiCA side | |
|---|---|---|
| Category defined in | MiFID II Art. 4(1)(15) and (44), Annex I Section C | MiCA Art. 3(1)(5) to (9) |
| Rules that follow | Sectoral legislation: MiFID, MiFIR, MAR, Prospectus Regulation (as named in the Commission’s question) | MiCA, including a white paper under Articles 4 and 6 for most crypto-assets |
| What decides entry | Rights, class and negotiability (ESMA Guideline 2) | Residual: MiCA applies only to crypto-assets not otherwise excluded, as the EBA puts it |
| EBA view, 24 Sept 2026 | Tokenized instruments should stay here | Boundary with MiFID not sufficiently clear |
The Record View
A letter saying “we think this is a security” is an opinion that ages the day a regulator moves. In Stobox Intelligence, the same question is built to be held as a record: the classification, the date it was entered, the document it rests on and an evidence level that says how far it was checked against the source. When the law or the rights text changes, the old record stays and a dated one sits beside it. Nothing is averaged into a score: a token meeting two of ESMA’s three conditions reads as two of three.
Design Note: Stobox Orbit
Stobox Orbit, a permissioned tokenization protocol, is in development and running on testnet. We are building it to ask this boundary question before a token exists. A token is designed to declare an instrument class (equity, debt, fund, hybrid or other), because in our working catalogue the class decides the rule set, not the label. Each legal rule is meant to be a dated, sourced record, draft until signed off; the EU and UK part is research, not a legal opinion. For fund tokens, Orbit is designed to record whether the chain is the register of record or a mirror of the registrar’s register, defaulting to mirror until confirmed, jurisdiction by jurisdiction. The on-chain register is pseudonymous: holdings are keyed to a subject identifier, never a name. Orbit is designed to enforce the rules an issuer configures; it does not decide whether a token is a security.
What to Do on Monday
In the Stobox Tokenization Framework, this question sits in Asset Structuring (the rights package) and Legal Documentation (the document set).
- Write down the rights of each token class, and the rights it deliberately excludes. The rights package largely determines the classification.
- Test the structure against the three ESMA conditions using the actual rights text. The label will not carry the argument, and a whitelist will not either.
- Decide which side of the line you are planning for, and say why in one paragraph. If the structure is meant to sit outside the securities category, that paragraph is the one a regulator will read first. Re-read it against the EBA’s structuring example.
- Put a dated, written classification analysis in the issuance file, and update it whenever the rights package changes.
- If you plan an offer in more than one Member State, do not assume one answer travels. The EBA notes that national law may classify the same token differently.
FAQ
Does issuing on a blockchain make a share or a bond a MiCA crypto-asset? No. Under Article 2(4)(a) and Recital 9 of MiCA, a crypto-asset that qualifies as a financial instrument stays under the existing financial services framework.
Does a whitelist make a token non-transferable, and so not a security? According to ESMA, a whitelist does not on its own prevent a token from qualifying as a transferable security. Restrictions that make a token impossible to negotiate may, and ESMA says these are assessed case by case.
Who decides the classification? National competent authorities apply the criteria, using ESMA’s guidelines. Under Article 97 of MiCA, national authorities, not issuers, may request an opinion from ESMA, EIOPA or the EBA.
Does the 2026 MiCA review change this today? No. The Commission consultation opened on 20 May 2026 and the EBA responded on 24 September 2026. A response is a position, not a legal change. Check the current text of MiCA before relying on this article.
To see how a classification question looks as a record, look at Stobox Intelligence; Stobox Orbit’s documentation will follow when it is public.
Related reading in this series
- The DLT Pilot cap: what EU ministers decide on 9 October
- Pontes: central bank money for tokenised securities
- Also in this series, in the coming weeks: EU Inc and the 28th Regime, significant CASPs, commodity RWAs, GDPR and onchain registers, stablecoins against central bank money, and the 2027 scenarios.
Sources
Accessed 1 October 2026.
- Regulation (EU) 2023/1114 (MiCA), OJ L 150, 9.6.2023, Articles 2, 3(1), 4, 6, 97 and Recital 9: EU Publications Office
- Directive 2014/65/EU (MiFID II), OJ L 173, 12.6.2014, Article 4(1)(15) and (44), Annex I Section C: EU Publications Office
- ESMA, Final Report: Guidelines on the conditions and criteria for the qualification of crypto-assets as financial instruments, ESMA75-453128700-1323, 17 December 2024: ESMA
- EBA, Response to the EC targeted consultation on the review of MiCA, 24 September 2026, Q1, Q2 and Q7: EBA
- EBA press release, “The EBA identifies priorities for the review of MiCA”, 24 September 2026: EBA
- European Commission, “Commission seeks feedback on the functioning of EU crypto-assets rules”, 20 May 2026: European Commission
This article is general information, not legal advice. It does not assess any specific token or issuance. Check your structure with qualified counsel in the relevant Member State.
