An update on the situation in Poland, regarding the enforcement of the MiCA regulation and the settling of the Crypto-Assets Service Providers registration process. LegalBison lawyer Krystian Lapka provides us with a regulatory insight.
The Markets in Crypto Assets Regulation (hereinafter “MiCAR”) came into force in June 2023. This evaluation is based on the Polish Draft Act (hereinafter “PDA”), an implementing act supplementing MiCAR, as published on the Polish Legislative Centre’s website on 3 March 2024. Since the previous evaluation, the PDA has been reviewed by the Legislative Law Committee, which is the final committee authorized to provide an opinion.
This version of the PDA is an amended proposal drafted by the Law Committee; however, it has not yet been adopted and may therefore undergo further revisions and significant changes. Before entering into force it must be endorsed by the Polish Parliament.
The Law Committee commented on certain aspects of the PDA, but the comments remain to be incorporated, with certain exceptions that have been approved by the Ministry of Finance, as evidenced by the current version of the PDA.
Regarding the ongoing issue of the transitional period granted to VASPs, Article 162 of the PDA states: “During the period from the date of entry into force of this Law until the date of obtaining or refusing to grant the permit (VASPs are entitled to a transitional period under the old rules) (…) but no later than 30 June 2025.”
The Law Committee directly addressed this provision, pointing out deficiencies in the current wording. It emphasized that the provision would require further scrutiny in the near future, especially since the exact date of the PDA’s entry into force remains uncertain. The Law Committee proposed that the transitional period for VASPs that have submitted their CASP application be set as a variable, specifically, 6 months after the act comes into force. Additionally, the deadline for submitting applications should be extended to 31 July 2025, which would allow applicants to potentially continue operating until January 2026.
Finally, the Law shall enter into force 14 days after its announcement (Art. 168 of PDA).
It should be noted that these changes are not yet in force and may be subject to further adjustments, depending on the final opinions and decisions from the Polish Parliament.
In addition to the points mentioned above, there remains one outstanding concern, specifically related to Article 143(3) of MICAR. The second paragraph of this article allows Member States to shorten the transitional period granted to CASPs if they determine that their national regime is less stringent. While Polish legislators have indicated an intention to exercise this right, the provision clearly outlines that this discretion is not unconditional and is subject to certain limitations.
“By 30 June 2024, Member States must notify the Commission and ESMA whether they have exercised the option provided for in the second subparagraph and the duration of the transitional regime.”
Furthermore, the second paragraph specifies that any changes must occur by 30 December 2024. However, Poland has failed to adopt the PDA within this timeframe, raising questions about the legality of its reliance on Article 143(3) of MICAR.
National law of Member States found to be in conflict with provisions of EU law may be annulled, typically following infringement proceedings initiated by the EU Commission and a ruling by the European Court of Justice.
Based on this assessment, further delays in the legislative process are expected, with adoption likely occurring in late Q2 or even Q3 of 2025. Given the current wording outlined above, this could result in a transitional period extending until late Q1 2026.
In the previous version, a hasty and unannounced addition was made, which explicitly prohibited CASPs from engaging in lending activities or assisting/brokering in any process involving loans or loan-like transactions. As a result, crypto lending services were effectively prohibited under the Act.
However, in the current version, the Ministry of Finance has announced that this provision will be removed from the final draft of the Act.
