Publishing a Crypto White Paper Under MiCA: Do You Need Regulatory Approval First?

The answer under MiCA is nuanced. It depends entirely on how your token is classified. The regulation distinguishes clearly between “crypto-assets other than asset-referenced tokens or e-money tokens” (typically utility tokens) and stablecoins (ARTs and EMTs).

This guide explains the specific legal requirements for publishing a white paper in order to issue a token in the European Union, the difference between “notification” and “approval”, and the liability you face even if no regulator reviews your document beforehand.

The general rule: Notification without approval for utility tokens

For the vast majority of projects issuing what MiCA classifies as “crypto-assets other than asset-referenced tokens or e-money tokens” (often referred to as utility tokens), the regulation is designed to foster innovation by reducing administrative friction.

According to Article 8 of MiCA, competent authorities “shall not require prior approval of crypto-asset white papers, nor of any marketing communications relating thereto, before their respective publication”.

This means that for standard utility tokens, you do not need a regulator to stamp your white paper before you publish it. However, this does not mean you are free to act without oversight. You must comply with a strict notification regime.

Also read: What Are the Requirements of a White Paper Under MiCA?

The mandatory notification process

Before you can publish your white paper or offer your token to the public, you must notify the competent authority of your home Member State. This is a formal legal procedure with strict timelines:

• The 20-day rule: You must notify your white paper at least 20 working days before the date of publication;
• Accompanying explanation: The notification must include an explanation of why your crypto-asset should not be considered an Asset-Referenced Token (ART) or an E-Money Token (EMT);
• List of host Member States: You must provide a list of the other EU Member States where you intend to offer the crypto-assets.

Once you have notified the competent authority, they will share your white paper with ESMA (the European Securities and Markets Authority). ESMA then makes the white paper available in a public register by the starting date of your offer.

This process allows you to passport your token across the entire European Union without needing separate approvals in each country.

The exception: Strict approval for Asset-Referenced Tokens (ARTs)

If your project involves an Asset-Referenced Token (ART)—a crypto-asset that purports to maintain a stable value by referencing a basket of currencies, commodities, or other crypto-assets—the rules are significantly stricter.

For ARTs, you generally cannot publish the white paper or offer the token to the public without prior official authorization.

• Mandatory authorization: Article 16 states that a person shall not make an offer to the public of an asset-referenced token unless that person is authorized by the competent authority;
• White paper approval: The authorization process includes the formal approval of the crypto-asset white paper by the regulator.

If you are a credit institution (a bank), you do not need a separate MiCA license, but you must still draw up a white paper and submit it for approval by the competent authority before publication.

Unlike utility tokens, where the regulator receives the document for information purposes, ART issuers undergo a rigorous assessment of their business model, reserve of assets, and governance before the white paper can see the light of day.

The nuance: E-Money Tokens (EMTs)

E-Money Tokens (EMTs) are crypto-assets that reference a single official currency (like a Euro stablecoin). Under MiCA, these are treated as electronic money.

The issuance of EMTs is restricted to two types of entities:

• Credit institutions (banks);
• Electronic money institutions (authorized under Directive 2009/110/EC).

Regarding the white paper itself, Article 51 mirrors the rules for utility tokens regarding approval. It states that “competent authorities shall not require prior approval of crypto-asset white papers before their publication”.

However, this is a technicality. While the document itself might not require a separate stamp, the issuer must already possess a banking or e-money license to operate. Furthermore, the issuer must notify the white paper to the competent authority at least 20 working days before publication.

Therefore, you cannot launch an EMT as an unlicensed startup simply by notifying a white paper. You must first undergo the heavy prudential supervision required to become an electronic money institution.

→ See also: Token Issuance Expert Legal Assistance in Ireland

The notification trap: Why “no approval” is not “no supervision”

A common misconception among entrepreneurs is that because the regulator does not “approve” a utility token white paper, the content is not scrutinized. This is dangerous.

Competent authorities in the EU retain extensive powers to intervene after notification but before or during your offer. Under Article 94, regulators have the power to:

• Suspend or prohibit an offer: If they have reasonable grounds to suspect that the regulation has been infringed;
• Require amendments: They can demand that you amend your white paper or marketing communications if they find the information is not complete, fair, or clear;
• Request additional information: They can require the inclusion of specific risk warnings or supplementary details.

If you notify a white paper that claims to be a utility token, but the regulator analyzes the “substance over form” and decides it is actually an ART or a financial instrument, they can halt your project immediately. The 20-day notification period essentially serves as a window for the regulator to review your classification and intervene if necessary.

Liability: The cost of getting it wrong

Perhaps the most critical aspect of MiCA for founders is that publishing without approval does not shield you from liability. In fact, it increases your personal responsibility.

Article 15 establishes a strict civil liability regime for the information given in a crypto-asset white paper.

• Issuer liability: The issuer is liable to a holder of the crypto-asset for any loss incurred due to information that is not complete, fair, or clear, or that is misleading;
• Management liability: This liability extends to the members of the administrative, management or supervisory body (the founders and directors);
• Burden of proof: It is the responsibility of the holder to present evidence that the information was misleading and that they relied on it when making the purchase.

Crucially, MiCA explicitly states that any contractual exclusion or limitation of civil liability (such as a disclaimer in the white paper saying “we are not responsible”) is deprived of legal effect.

Because the regulator does not “vet” your utility token white paper for accuracy before publication, the burden falls entirely on you to ensure every statement is factually correct and legally compliant.

→ See also: Token Issuance Expert Legal Assistance in Estonia

How LegalBison helps you navigate MiCA notifications

The “notify and publish” regime for EU crypto-assets offers speed, but it carries significant legal risk. A white paper under MiCA is no longer a marketing document; it is a liability document.

At LegalBison, we specialize in ensuring your crypto project meets the rigorous standards of Regulation (EU) 2023/1114. Our services include:

• Token Classification: We provide a formal legal opinion on whether your token qualifies as a utility token (notification only), an ART (authorization required), or falls outside MiCA (such as true NFTs);
• White Paper Drafting: We draft or redraft your white paper to meet the strict disclosure requirements of Annex I, ensuring all information is “fair, clear, and not misleading” to mitigate liability;
• Competent Authority Notification: We manage the formal notification process with the National Competent Authority (NCA), ensuring the 20-day deadline is met and the required legal explanations are provided;
• Sustainability Disclosures: We assist in drafting the mandatory disclosures regarding the adverse climate impacts of the consensus mechanism.

Do not leave your compliance to chance. Contact LegalBison today to prepare your MiCA-compliant white paper and navigate the notification process with confidence.