Austria’s financial regulator, the FMA, has published a new guidance note for crypto firms on how to handle MiCAR Title II “crypto-asset whitepapers” for so-called “other” cryptoassets (i.e., cryptoassets that are not asset-referenced tokens or e-money tokens). The piece, “Reden wir über Aufsicht” (Supervision Talk) No. 12, is dated Feb. 5, 2026 and frames the whitepaper as the core transparency and investor-protection document — while warning that early supervisory practice is already exposing repeat mistakes that can slow projects down.
At a high level, the FMA’s message is: make the whitepaper coherent, complete, and not misleading — and don’t underestimate the legal classification work behind it.
The big friction points the FMA keeps seeing
The publication reads like a “here’s what keeps breaking in real submissions” checklist — and it’s mostly about jurisdiction, marketing, and classification.
1) Filing with the wrong “home” authority
MiCAR’s logic routes supervision to the issuer’s home Member State in the EEA — typically where the provider has its seat or residence. The FMA says mis-assignments happen often in practice (cross-border offers, complex group structures, non-EU projects), and it gives concrete examples: a Vienna-based issuer offering across the EU still has Austria as home; a Luxembourg issuer targeting Austrian investors remains under the CSSF, with the FMA limited to receiving a notification; and a Cayman issuer seeking trading admission in Germany should deal with the German authority, not the FMA.
2) “Unintended public offers” — especially from secondary-market communications
One of the FMA’s most practical warnings is aimed at CASPs: even small “marketing-ish” highlights of a specific token can be interpreted as a public offer, triggering Title II whitepaper obligations — including in secondary-market contexts where assets already trade and legacy documentation may not exist. The FMA’s point is that MiCAR looks at the effect of the communication (does it enable a purchase decision and show an intent to sell?), not what the firm claims it intended.
It also draws a line between neutral service information and product promotion: plain price display is generally not treated as a new public offer, but richer content (descriptions, risk notes, “market data” presented with a promotional tone) can drift into sales messaging depending on wording and presentation.
3) Language discipline: don’t repeat project claims as fact
The FMA gets unusually specific about wording: it suggests firms avoid value-laden, project-endorsing statements (e.g., “X will be faster than Bitcoin”) and instead keep distance in language (e.g., “X promises to…”). It’s basically telling platforms and intermediaries: don’t accidentally become the token’s marketing department.
4) Legal classification is where projects burn time
The regulator calls out a recurring bottleneck: the required Article 8(4) MiCAR explanation — the reasoning for why the token is not excluded from MiCAR’s scope and why it isn’t an ART/EMT (or another regulated instrument). The FMA says many submissions fail not because of formatting, but because these explanations are missing, thin, or unclear — which then triggers change requests and delays.
It also flags tricky edge cases, especially where marketing or mechanics start to look like value-stabilization/wealth-preservation promises (which may push toward an ART-like reading), or where redemption structures include cash settlement features that can look more like a financial instrument.
The “so what” for crypto businesses
This is guidance, not a headline-grabbing enforcement action — but it’s the kind of document that quietly changes how firms operate day to day:
- If you’re an issuer, it’s a warning that the hard part isn’t just writing a whitepaper — it’s the classification logic and jurisdiction routing that determines who supervises you and whether you’ll get stuck in back-and-forth.
- If you’re a CASP/exchange, it’s a reminder that your asset pages, listings copy, and “education” blurbs can cross into “public offer” territory depending on presentation — even when you think you’re just informing users.
- For the broader market, it’s another signal of what MiCAR is doing in practice: tightening standards not only for issuers, but for how tokens are described and promoted across the distribution layer.
What to watch next
- Whether Austrian-market CASPs start adjusting listing language and UX to reduce the risk of “unintended public offers,” which the FMA calls one of the most relevant problem areas under Title II.
- How frequently the FMA issues follow-up editions in this “Supervision Talk” series as MiCAR practice matures (the regulator explicitly positions the format as a recurring, fast, clarity-focused channel).
- Increased pre-submission outreach: the FMA recommends early coordination with its FinTech contact point for complex projects — a hint that firms that wait until launch-week paperwork may lose weeks to revisions.