The European Commission is currently reviewing the Markets in Crypto-Assets Regulation (MiCAR). With the deadline for comments on the targeted consultation expiring tomorrow, one issue deserves particular attention: the regulatory treatment of asset-referenced tokens (ARTs).
The European Commission launched its review of MiCAR in May 2026. The targeted consultation addresses, among other matters, the requirements applicable to asset-referenced tokens. The review presents an important opportunity to reconsider the fundamental regulatory approach to ARTs.
MiCAR subjects ART issuers to extensive authorisation, governance, prudential and organisational requirements. The market has seen no authorised ART issuers as of today. This should not simply be interpreted as an absence of market demand. There is substantial interest in asset-referenced token structures from both established financial institutions and crypto-native market participants. However, the requirements for issuers of ART (and EMT) are higher than for issuers of other crypto-assets or financial instruments. A plausible explanation for the missing authorizations is that the regulatory burden associated with the ART regime is, in a number of cases, disproportionate to the actual risks of the underlying structure. This raises the question of whether all ART issuers pose the same risks.
The answer should be no.
One of the core problems is the insufficient differentiation between different ART structures. MiCAR defines an ART as a crypto-asset that is not an electronic money token and that purports to maintain a stable value by referencing another value or right, or a combination thereof. The concepts of “reference” and “value stability” are not further defined in MiCAR, creating significant interpretative uncertainty.
This becomes particularly relevant when tokenised real-world assets are considered. Take gold as an example. A token may simply reference the value of gold. The holder does not own the underlying gold. Instead, the token represents a claim whose value is linked to the reference asset. The issuer therefore creates counterparty and reserve-related risks – precisely the type of risks for which the ART regime was originally designed.
A fundamentally different structure is a token that represents ownership of certain gold. If one token represents ownership of one gram of gold, or co-ownership of a defined pool of gold, the token is not merely tracking the value of an asset. It represents a direct civil-law interest in that asset.
The distinction matters. Where the underlying asset is legally owned by the token holder and segregated from the issuer's assets, the holder's exposure to the issuer is fundamentally different. In an insolvency scenario, the relevant asset may not form part of the issuer's insolvency estate, subject of course to the applicable civil-law and custody arrangements. Liechtenstein, for example, has established a comprehensive civil-law framework for tokenised assets through the TVTG.
The regulatory risk is therefore not equivalent to that of a stable-value token that creates a direct claim against its issuer.
The consequences extend beyond individual issuers. A broad interpretation of the ART definition can make European tokenisation projects unnecessarily difficult. This is particularly relevant for fractional ownership structures. A token representing a fractional ownership interest in a real-world asset may be fungible and therefore fall outside the traditional NFT exemption. Under a broad interpretation, such a structure may consequently be treated as an ART, despite the fact that the token holder has a direct ownership interest in the underlying asset.
The result is a regulatory paradox: The closer a token comes to being a genuine digital representation of an underlying asset, the less obvious it becomes why it should be subjected to the same prudential regime as a token creating substantial issuer and counterparty risk.
Such an approach risks making European tokenisation structures less attractive and may incentivise market participants to seek alternative legal or technological structures outside the MiCAR regime.
The distinction between Asset-referenced token und Asset-representing tokens could provide the basis for a more proportionate MiCAR framework.
Tokens whose value is maintained by reference to an underlying asset or right and which create a corresponding issuer or counterparty exposure; and
Tokens that constitute a digital representation of, or legally embody, ownership of an underlying real-world asset.
The latter should not automatically be brought within the ART regime simply because the underlying asset determines the economic value of the token. The difference is not merely technical. In an ownership-based model, the token holder's position is fundamentally connected to the underlying asset itself. In a reference-based model, the holder relies on the issuer's obligation to maintain the promised value. These are different risk profiles and should be regulated accordingly.
It would therefore be consistent with the logic of MiCAR to consider the underlying legal and economic relationship between the token holder and the referenced asset much more closely. The regulatory requirements should then correspond to the actual risks of each structure.
The current review provides an opportunity to address this structural issue. A clearer distinction between asset-referenced and asset-representing tokens could:
The MiCAR review should not merely fine-tune existing ART requirements. It should reconsider whether the current ART perimeter accurately captures the risks that the regime was intended to address. Given that no ART authorisations have been granted to date, there is a strong indication that the current regulatory framework needs to be reconsidered.
The objective should be simple: regulate the risk – not merely the technology or legal form of a token.
