Issuing a token under MiCA

Since 30 December 2024, offering a token in the European Union follows a path set by the MiCA Regulation: classify the crypto-asset, draw up a white paper, notify it to the competent authority, publish it and answer for its content. An issuer established outside the EU can follow that path from France: the AMF accepts a white paper in English, and once notified and published the document is valid throughout the Union.

ORWL Avocats guides issuers at every step, whether they are preparing a utility token, an e-money token or the tokenisation of a real-world asset, and provides legal opinions on token classification to the platforms that admit tokens to trading.

The journey of a token under MiCA

We advise three kinds of client: the project preparing its token, the project whose token already exists and which seeks admission to trading on a platform, and the stablecoin issuer, which must first obtain a status from the ACPR (Autorité de contrôle prudentiel et de résolution, the French Prudential Supervision and Resolution Authority). ORWL Avocats acts from scoping through to the life of the token, in seven steps.

Classifying the token: MiCA or financial instruments?

Everything starts with a question the Regulation puts first: is the token a crypto-asset within the meaning of MiCA, or does it fall under another body of rules? MiCA excludes from its scope crypto-assets that qualify as financial instruments, deposits, funds (except e-money tokens), securitisation positions or insurance and pension products (Article 2(4)). It also excludes crypto-assets that are unique and not fungible (Article 2(3)), subject to the limits set out below.

The most sensitive boundary is that with financial instruments. ESMA has published guidelines on the conditions and criteria for the qualification of crypto-assets as financial instruments. Their approach is one of substance: the rights actually attached to the token and the way it is presented prevail over its name. A token that gives a share of the project’s revenue, a claim against the issuer or rights comparable to those of a shareholder carries a serious risk of classification as a transferable security; a mere vote on the parameters of a protocol is generally not enough. Most so-called governance or revenue-backed tokens therefore call for an in-depth analysis before any drafting, and that is where each of our engagements begins.

The classification is the issuer’s responsibility. It is for the issuer, or for the person seeking admission to trading, to establish it and, for crypto-assets other than asset-referenced and e-money tokens, to justify it in the explanation attached to the notification of the white paper, following the template set by the joint guidelines of the European Supervisory Authorities. The AMF (Autorité des marchés financiers, the French financial markets regulator) may challenge it before publication and after.

Three token families, three regimes

Once the token is placed within MiCA, the regime depends on its family: e-money tokens, asset-referenced tokens or other crypto-assets, including utility tokens. A tokenised real-world asset most often falls outside MiCA, under securities law. The table summarises the three situations we handle most often. ORWL Avocats also advises issuers of asset-referenced tokens (ARTs), which are rarer, as part of its stablecoin practice.

Each family rests on a distinct body of rules.

• Utility tokens and other crypto-assets: Title II of MiCA (Articles 4 to 15). It governs the offer to the public, admission to trading, the white paper, marketing communications, notification, publication, the fourteen-day right of withdrawal and the liability of the issuer.
• E-money tokens: Title IV of MiCA (Articles 48 et seq.). The issuer must be an electronic money institution or a credit institution, notify a white paper, redeem at par at any time and pay no interest.
• Tokenised assets: securities law. The French Monetary and Financial Code (CMF) allows unlisted financial securities (titres financiers) to be recorded on a shared electronic recording device (dispositif d’enregistrement électronique partagé, DEEP, the French legal term for a distributed ledger) (Article L. 211-3); the DLT Pilot Regime is open to market infrastructures based on distributed ledger technology.

ORWL Avocats also advises on tokens that fall outside these three families: NFT collections and marketplaces, whose exclusion from MiCA has limits, and decentralised protocols, staking and tokens without an identifiable issuer.

How ORWL supports a token issuance

We run each issuance in a stable order, whose seven steps form the diagram at the top of the page:

• Scoping and diagnosis. We get to know the project, the use of the token, the business model, the timetable and the countries targeted. This phase sometimes rules out a risky structure or identifies an applicable exemption.
• Regulatory classification. We classify the token in a written analysis under MiCA and financial instruments law, then choose the regime: utility token, e-money token or tokenised financial security.
• White paper. We draft the white paper according to the content required by MiCA and the technical standards: information on the issuer, the project, the offer, the rights and obligations attached to the token, the technology, the risks and the climate impact; summary; statement by the management body.
• Contractual documentation. Terms of the offer, contracts with distribution partners, technical providers, advisers, market makers and platforms, agreements with contributors and early investors. These contracts must remain consistent with the white paper, which engages the liability of the issuer.
• Marketing. Bringing the website, social media, campaigns and influencer partnerships into compliance: marketing communications must be identifiable as such, fair, clear and not misleading, and consistent with the white paper (MiCA, Article 7). The AMF may request them.
• Notification to the AMF. Filing of the white paper, the classification explanation, the list of host Member States, the intended date and the notification form, at least twenty working days before publication (MiCA, Article 8; AMF instruction DOC-2025-01). The AMF does not approve the document but may ask questions and request additional information or changes; we prepare each answer with the issuer.
• Issuance and follow-up. Publication of the white paper, safeguarding of the funds raised, management of retail holders’ right of withdrawal, then the life of the token: any significant change must be notified seven working days before publication (Article 12), later communications remain regulated and admission to trading triggers further obligations.

We generally need a few weeks to prepare the file and bring the activities into compliance, then a few weeks for the phase before the AMF. On these notifications, the AMF keeps to the time limits set by MiCA. A fixed fee of EUR 3,000 is payable on notification (CMF, Article L. 621-5-3). The AMF page on offers to the public and admission to trading (in French) describes the practical arrangements.

Not every token issuance falls within the scope of MiCA. No white paper is needed for:

• an offer made to fewer than 150 persons per Member State;
• an offer whose total consideration does not exceed EUR 1,000,000 over twelve months across the Union;
• an offer addressed solely to qualified investors.

MiCA leaves out altogether tokens that are:

• offered for free;
• created as a reward for validating transactions;
• giving access to a good or service that already exists;
• usable only within a limited network of merchants.

These exemptions (Article 4(2) and (3)) fall away as soon as the offeror announces an admission to trading or the token is admitted to trading on a platform. Assessing them correctly is part of the scoping.

An issuance also has tax consequences, for the issuer and for the purchasers: treatment of the funds raised, VAT, taxation of holders. The firm’s Tax practice works alongside the Regulatory practice on these questions, before the issuance.

Non-EU issuers: offering a token in France

MiCA does not reserve issuance to European players. An issuer established outside the Union may offer its token in France on three conditions: being a legal person, complying with Title II and notifying its white paper to the right authority.

That authority is the one of the Member State where the issuer has a branch or, failing that, of the Member State of its first offer to the public or of its first application for admission to trading. The AMF describes itself as the competent authority in both cases and accepts a white paper in French or in English. Once notified and published, the white paper is valid throughout the Union: it is the issuer’s passport.

Three points call for particular attention.

• Classification. A token designed under a foreign law as a simple usage token may, by the rights it confers, be a financial instrument under EU law.
• French consumer law. MiCA does not displace it where the offer targets individuals: pre-contractual information, the ban on misleading commercial practices, control of unfair terms in the terms of sale, and the use of the French language in documents addressed to consumers in France.
• Marketing rules. Marketing communications must be identifiable as such, fair, clear, not misleading and consistent with the white paper (MiCA, Article 7). In France, the regime of démarchage (unsolicited financial solicitation under French law) and Law No 2023-451 of 9 June 2023, which regulates the promotion of crypto-assets by influencers, apply on top. The AMF may request the communications and require changes.

ORWL Avocats also advises foreign providers that offer crypto-asset services in France, beyond the issuance of a token, and reviews their marketing aimed at the French market.

Admission to trading and legal opinions for platforms

A token that has already been issued changes regime when it targets a trading platform.

Project side: getting the token admitted

The person seeking admission must hold a notified and published white paper, like an offeror. The exemptions for offers to the public no longer apply. The operator of the platform may take charge of the white paper under a written agreement (MiCA, Article 5).

Tokens admitted before 30 December 2024 follow a transitional regime: the issuer is bound only by the rules on marketing communications, and it is for the platform to ensure, by 31 December 2027 at the latest, that a white paper exists (Article 143(2)).

We support projects through this process, whether for a first listing or for bringing an older token into compliance.

Platform side: classifying before admitting

An operator authorised as a CASP checks three things before any admission (Article 76):

• the token complies with the platform’s operating rules;
• the technical solution is reliable;
• the crypto-asset is not linked to illicit activities.

It must also make sure that the token is not a financial instrument, failing which it would be providing an investment service without authorisation.

This is why we provide platforms with legal opinions on token classification, token by token or as a recurring flow in step with their listings. Each opinion examines the rights attached to the token, its documentation and the existence of a valid white paper, then concludes on its classification under MiCA and financial instruments law. This offer is distinct from supporting an issuance; it is addressed to platforms and to providers that execute orders or advise on tokens.

Classifying a token under MiCA

Why work with ORWL Avocats?

ORWL Avocats has advised token issuers since 2018, from the French regime for public token offerings through to MiCA. The firm practises banking and financial law, with particular command of crypto-asset services, stablecoins and tokenisation. We support French projects preparing their first token, established groups tokenising an asset or launching a loyalty programme, non-EU issuers opening their offer to the French market, stablecoin issuers applying for electronic money institution status and trading platforms that must classify the tokens they admit. Since 2018, the firm has delivered several dozen legal opinions on token classification. The practice is ranked in Chambers FinTech and recognised by Leaders League in blockchain law.

An issuance rests first on a legal classification on which everything else depends: MiCA or financial instruments, utility token or e-money, exempt offer or white paper. A template can give a white paper its structure; a lawyer takes responsibility for the analysis, defends it before the AMF under legal professional privilege and knows when a structure has to change. A lawyer also holds together the strands an issuance brings into play: compliance, contracts with partners and platforms, marketing, personal data, company law and tax. And a lawyer understands the technology: reading a smart contract, a tokenomics model or a protocol architecture is part of the job.

A partner leads every engagement, from scoping to publication of the white paper and on through the life of the token. We work with a network of partners we coordinate: smart contract auditors, accountants, custody providers, market makers and communication agencies.