RightsStep 1
What the token gives
We analyze the economic, voting, usage or redemption rights, using the white paper, the contracts and the code where necessary.
Substance, not the name.
Is my token a financial instrument? MiCA token classification
Before launching a token you need to know what it is legally. We analyze its rights under the MiCA Regulation and the ESMA guidelines, give you a reasoned report and, if it is a crypto-asset, prepare the MiCA Art. 8(4) explanation that accompanies the white paper.
Not sure whether your token is a security?
Tell us what rights your token gives and how you plan to sell it, and we will tell you whether you need a classification report and what it costs.
- Reply within 24 h
- No commitment
- Confidential
- White paper advance notice
- 20 working days
- ESMA guidelines on classification
- March 19, 2025
- ESAs template and standardized test
- May 12, 2025
- Authority in Spain
- CNMV
What we do
A report that answers the question that decides everything
The classification of your token determines the rules that apply, the document you need, who supervises you and who can sell it.
SecuritiesStep 2
Is it a financial instrument?
We apply the ESMA criteria for transferable securities, money market instruments, units in collective investment undertakings and derivatives.
ESMA Guidelines 2 to 6.
TokensStep 3
Is it an e-money token or an asset-referenced token?
We check whether the token aims to maintain a stable value by referencing an official currency or other assets.
MiCA Arts. 3 and 8(4).
ExclusionsStep 4
Is it outside MiCA?
We review the exclusions: unique NFTs, deposits, insurance and the other cases in Article 2 of MiCA.
MiCA Art. 2 and Guideline 8.
ReportStep 5
Reasoned report
We deliver a report with the classification, the reasoning and the practical consequences for your project.
For investors, banks and the supervisor.
Art. 8(4)Step 6
Explanation for the CNMV
If it is a crypto-asset, we draft the explanation that accompanies the white paper notification, using the ESAs template.
MiCA Art. 8(4).
Scenarios
When you need to classify your token
These are the situations in which we are most often asked for a classification report.
Launch
You are about to notify a white paper
MiCA requires the notification to include an explanation of why the token is not a financial instrument, an asset-referenced token or an e-money token.
Banks
Your bank or an exchange asks you to justify it
Banks, platforms and crypto-asset service providers increasingly ask for a legal analysis before working with a token.
Investors
A round with professional investors
Investors want to know whether the token is a security, because it changes their rights and their regulatory risk.
Hybrids
A token with several functions
If the token gives usage rights and also a share in profits, ESMA says you must first look at whether it is a financial instrument.
What the law says
Token classification in dates and articles
Data from the MiCA Regulation, Law 6/2023 and the guidelines of ESMA and the European Supervisory Authorities (ESAs).
MiCA Art. 2(4)
Outside MiCA
MiCA does not apply to crypto-assets that are financial instruments: they are governed by securities law.
MiCA Art. 8(3)
No prior approval
The authority does not approve the white paper before publication; it is notified to it.
MiCA Art. 8(4)
3 questions
The notification explains why the token is not excluded from MiCA, nor an e-money token, nor an asset-referenced token.
MiCA Art. 8(5)
20 working days
Minimum advance notice for notifying the white paper and the explanation before publishing them.
ESMA Guidelines
Substance over form
A token is classified by its rights and economic content, not by its name or its technology.
Art. 251 Law 6/2023
CNMV
The competent authority for MiCA in Spain; the Bank of Spain supervises asset-referenced tokens and the issuers of e-money tokens.
Shall we classify your token?
Send us the white paper or a description of the token’s rights and we will tell you which rules apply and which document you need.
Frequently asked questions
Token classification: frequently asked questions
How do you know whether a token is a financial instrument?
We analyze its economic content, not its name. Under the ESMA guidelines on classifying crypto-assets as financial instruments, a token is a transferable security if it is not a payment instrument, belongs to a class of securities and is negotiable on the capital market; giving rights equivalent to those of a share (dividends, voting) or of a bond (repayment of principal, interest) points in that direction.
What happens if my token is a financial instrument?
It falls outside MiCA (Art. 2(4)) and is governed by securities law: Law 6/2023, MiFID and the Prospectus Regulation. If it is represented on a distributed ledger, it needs an ERIR. We explain this in tokenization lawyers.
What is the MiCA Art. 8(4) explanation?
It is the document that accompanies the white paper notification for a crypto-asset that is neither an asset-referenced token nor an e-money token. It must explain why the token is not excluded from MiCA, nor an e-money token, nor an asset-referenced token. The ESAs published a template and a standardized test, applicable from May 12, 2025.
How far in advance is the white paper notified?
At least 20 working days before publication (MiCA Art. 8(5)). The authority does not approve it beforehand (Art. 8(3)), but it can request changes or suspend the offer if it detects problems. In Spain, the authority is the CNMV. More in white paper.
Is a utility token always a MiCA crypto-asset?
Not always. ESMA warns that a so-called “utility” token can be a financial instrument if it reproduces rights typical of a security. The mere expectation that the price will rise is not enough to make it one, but a right to a share of the profits weighs heavily.
What about NFTs?
Unique, non-fungible NFTs are outside MiCA, unless they meet the criteria of a financial instrument. ESMA clarifies that uniqueness is assessed by the content of the token, not by its technical identifier, and that fractions of an NFT are not automatically considered unique.
How much does the classification report cost?
It depends on the complexity of the token and the documentation available. After reviewing the white paper and the contracts, we give you a fixed quote that includes, if you need it, the Art. 8(4) explanation.
Practical guide
How we classify a token
We follow the order proposed by ESMA and the ESAs: financial instrument first, then tokens and exclusions.
Financial instrument
If it meets the criteria of a security or other instrument, that classification prevails.
Tokens
If it is not, we check whether it is an e-money token or an asset-referenced token.
Exclusions
Unique NFTs and the other cases that fall outside MiCA.
Classifying your token in 10 steps
- We collect the white paper, the token terms, the contracts and the technical documentation.
- We identify all the rights the token gives and who guarantees them.
- We check whether it is a transferable security using the ESMA criteria.
- We rule out or confirm other instruments: money market, collective investment and derivatives.
- We analyze whether it aims to maintain a stable value (asset-referenced or e-money token).
- We review the MiCA exclusions, including NFTs.
- We assess whether it is a hybrid token and which classification prevails.
- We draft the reasoned report with the consequences for the project.
- If it is a crypto-asset, we prepare the Art. 8(4) explanation using the ESAs template.
- We support you with the notification to the CNMV and any requests for information.
Source: Regulation (EU) 2023/1114 (Arts. 2, 3 and 8), ESMA Guidelines of March 19, 2025 and ESAs joint guidelines JC 2024 28.
Working glossary
Key concepts for classifying a token
Terms from the MiCA Regulation, MiFID II and the ESMA guidelines.
MiCARule
Crypto-asset
A digital representation of a value or right that is transferred or stored using DLT or similar technology.
MiCA Art. 3.
SecurityMiFID
Transferable security
A class of securities negotiable on the capital market, such as shares and bonds.
ESMA Guideline 2.
EMTToken
E-money token
A token that aims to maintain a stable value by referencing an official currency.
MiCA Art. 3.
ARTToken
Asset-referenced token
A token that aims to maintain a stable value by referencing other assets or a combination of them.
MiCA Art. 3.
UtilityToken
Utility token
A token that gives access to a good or service of the issuer.
MiCA Art. 3 and Guideline 7.
HybridClassification
Hybrid token
It combines functions; if it meets the criteria of a financial instrument, that nature prevails.
ESMA Guideline 9.
Playbook
The four possible answers and what they mean
Financial instrument
Rules and document: Law 6/2023 and MiFID; prospectus unless exempt; ERIR if on DLT.
Who supervises and sells: CNMV; investment firms.
E-money token
Rules and document: MiCA, Title IV; issued only by credit institutions or electronic money institutions.
Who supervises and sells: Bank of Spain for the issuer.
Asset-referenced token
Rules and document: MiCA, Title III; issuer authorization (or notification, if it is a credit institution) and legal opinion.
Who supervises and sells: Bank of Spain.
Other crypto-asset
Rules and document: MiCA, Title II; white paper notified with the Art. 8(4) explanation.
Who supervises and sells: CNMV; crypto-asset service providers.
Common mistakes when classifying a token
These are the ones we see most often in white papers and investor presentations.
- Deciding the classification by the name of the token.
- Not analyzing the contracts and the rights promised outside the white paper.
- Forgetting that a hybrid token is classified first as a financial instrument.
- Notifying the white paper without the Art. 8(4) explanation.
- Publishing the white paper before 20 working days have passed since the notification.
Contact
Book a call
Tell us what rights your token gives and how you plan to distribute it, and we will prepare a diagnosis and a tailored quote.
Token classification under MiCA and the ESMA guidelines
Updated November 4, 2026
Regulation (EU) 2023/1114 (MiCA) does not apply to crypto-assets that are financial instruments (Art. 2(4)). That is why the first question for any project is whether the token is a financial instrument: if it is, it is governed by securities law, and if not, by MiCA.
The ESMA guidelines
On March 19, 2025, ESMA published its guidelines on the conditions and criteria for classifying crypto-assets as financial instruments. They rest on two principles: technological neutrality, because tokenization does not change the nature of the instrument, and substance over form. They cover transferable securities, money market instruments, collective investment, derivatives, utility tokens, NFTs and hybrid tokens.
The Art. 8(4) explanation
Whoever offers a crypto-asset that is neither an asset-referenced token nor an e-money token notifies its white paper to the authority at least 20 working days before publishing it, with an explanation of why the token is not excluded from MiCA nor one of those tokens (Art. 8). The European Supervisory Authorities set the template and a standardized test in their joint guidelines, applicable from May 12, 2025.
Next steps
If the token is a crypto-asset, continue with the white paper and, if you will distribute it, with the CASP license. If it is a stable token, see e-money tokens and asset-referenced tokens. If it is a security, see tokenization lawyers.