On February 12, 2026, the European Banking Authority (“EBA”) published an opinion containing recommendations for national supervisory authorities for the period after the transition phase (“Opinion”).
Table of Contents
Background
On March 2, 2026, the transition period (“Transition Period”) granted by EBA in its no-action letter of June 10, 2025 (“No Action Letter”) for crypto-asset service providers that provide custody and transfer services (“CASP”) regarding e-money tokens (“EMT”). Among other things, EBA recommended that national supervisory authorities not require CASPs to obtain PSD2 authorisation during the Transition Period. For further information, please refer to the blog post on the No-Action Letter written by Awet Yohannes and myself.
What does the Opinion say about the period after the Transition Period?
The EBA differentiates between three scenarios for which it makes recommendations:
1. PSD2 Authorisation or Agent Activity
CASPs that are authorised under PSD2 or act as agents of a payment institution (“PI”) or an electronic money institution (“EMI”) may continue to provide custody and transfer services regarding EMT after the Transition Period.
Cryptically, the EBA recommends that national supervisory authorities should check whether the PIs and EMIs involved require authorisation under MiCAR, without recommending any assessment criteria or specifying any criteria. It remains to be seen what the national supervisory authorities will make of this recommendation.
2. Authorisation Application submitted but not yet granted
CASPs that have applied for PSD2 authorisation during the Transition Period should be allowed to continue providing custody and transfer services regarding EMT until a decision on the authorisation application has been made, provided that the following conditions are met:
- The authorisation application is complete and contains all the necessary documents.
- The CASP is highly cooperative and responds to questions from national supervisory authorities in an exhaustive, transparent and expeditious manner.
- The CASP is not subject to any supervisory measures and has not violated any provisions under MiCAR (or under national crypto regulation, if the CASP operates under a national transition period pursuant to Art. 143 (3) MiCAR) or other EU legislation (e.g., anti-money laundering) that would be material and relevant for a PSD2 authorisation.
- The national supervisory authority has no reason to believe that the CASP is unable to comply with PSD2, and there are reasonable grounds to believe that the application for authorisation will be approved within a very short period. EBA expects a decision on PSD2 authorisation to be made soon (by July 1, 2026, at the latest, provided that a national transition period pursuant to Art. 143(3) MiCAR applies).
CASPs that provide custody and transfer services regarding EMT in the period between the application and the decision of the national supervisory authority (“Interim Period”) may not engage in any marketing activities for payment services with EMT during this Interim Period and may not accept any new customers for EMT services. These restrictions during the Interim Period do not apply to CASPs operating on the basis of a national transition period pursuant to Art. 143 (3) MiCAR.
3. No Application for Authorisation or Rejection
CASPs that have not applied for authorisation under PSD2 or whose application for authorisation under PSD2 has been rejected should discontinue their custody and transfer services regarding EMT as of March 2, 2026, and offboard customers of these services.
Supplementary Interpretation Guidance
Surprisingly, the Opinion contains supplementary interpretation guidance for national supervisory authorities regarding the assessment of payment services. EBA clarifies that the transfer of EMT between wallets belonging to the same customer also deems to be a payment service, regardless of whether the respective wallets are qualified as payment accounts. Specifically, EBA refers to pay-outs of EMT held in custody to customers.
This supplementary interpretation guidance probably results from the fact that EBA stated in its No Action Letter that the custody and administration of EMT should be classified as a payment service and that wallets enabling the transfer of EMT to third parties should be classified as payment accounts, and that it was argued in the market that the transfer of EMT to wallet owners should not be classified as a payment service provided that the transfer of EMT to third parties is excluded. It would have been preferable if EBA would have follow the market view, as CASPs providing custody services are obliged under MiCAR to pay out the crypto assets held in custody. The question arises as to why EBA stipulates the requirement with the transfer to third parties if, in EBA’s view, EMT custodians inevitably slip into a payment service due to their obligation to pay out to customers.
Conclusion
It is to be welcomed that EBA is providing national supervisory authorities with further recommendations for the period after the Transition Period, in particular the recommendations for the second constellation, as PSD2 authorisation procedures usually take some time and it is to be expected that many authorisation procedures will not be completed by March 2.
It is critical to note that EBA considers the payment of EMTs held in custody to the respective customer to be a payment service, because the exclusion of transfers to third parties is therefore of no practical relevance. It is to be hoped that the national supervisory authorities will not follow this recommendation; after all, the statements in the No Action Letter were understood quite differently by quite a few parties (including CASPs).
