Stablecoin Payments After 2 March 2026: The EBA's New "Go/No-Go" Test For EMT Transactions Under PSD2 And MiCA—and The Board-Level Decisions CASPs Must Take Now

Introduction

The European market has, within remarkably few quarters, normalised the idea that a "payment" may be initiated in a user interface that looks like a wallet, settled in a token that is marketed as price-stable, and operationally executed by a crypto-asset service provider (CASP) that—at least in its own mental model—does not perceive itself as a classical payment institution; yet it is precisely this collision of commercial reality and legal taxonomy that the European Banking Authority (EBA) has been attempting to stabilise since mid-2025, because once an electronic money token (EMT) is used in transactional flows that resemble the execution of transfers on behalf of clients, the familiar perimeter of PSD2 begins to reassert itself, even if the rails are distributed and the vocabulary is new.

1. Why this matters now: the "transition comfort" is ending, and supervisors are being told how to act

In June 2025, the EBA issued its "No-Action Letter" in the form of an Opinion (EBA/Op/2025/08), which—responding to the Commission's request to clarify the overlap between PSD2 and MiCA—effectively engineered a time-limited, supervisory détente: national competent authorities (NCAs) were advised to treat only a subset of EMT-related crypto-asset services as PSD2 payment services, to delay PSD2 authorisation expectations until the end of the transition window, and to use a streamlined authorisation approach that leverages information already supplied in the MiCA authorisation process.

That window is now hardening into an operational deadline. On 12 February 2026, the EBA published a further Opinion (EBA/OP/2026/01) specifically focused on supervisory priorities at the end of the transition period, and—importantly for boards, founders, and compliance leaders—this Opinion does not merely restate principles, but proposes an enforcement choreography that creates three clear post-deadline scenarios, each carrying materially different continuity risk.

2. The EBA's three-scenario framework after 2 March 2026: a practical "license-or-stop" logic, with a narrow pending-application corridor

The EBA's February 2026 Opinion frames the end of the transition as a point at which, for any CASP (or any entity benefiting from MiCA transitional arrangements) that wishes to continue executing EMT transactions that qualify as PSD2 payment services, one of three supervisory outcomes should follow.

Scenario 1 — "You are covered": authorisation or a compliant partnership is already in place

If the entity has obtained authorisation as a payment institution or electronic money institution (PI/EMI), or if it has structured the activity through a partner payment service provider (PSP) that is authorised to provide the relevant payment services, the EBA's position is essentially continuity-friendly: the CASP may keep operating, but only within the functional and territorial limits of the authorisation model used (own licence or partner licence).

A nuance that is frequently underestimated in transaction structuring is that the "partner PSP" route is not automatically frictionless: the EBA explicitly reminds NCAs that, when a CASP relies on a PSP model (including agent-type arrangements), supervisors should assess whether the partner PSP itself needs an authorisation under MiCA (the Opinion references MiCA Article 59 in this context).

Scenario 2 — "You may continue, but only if you are already deep in the PSD2 pipeline": the pending-application corridor

The second scenario is the one many firms are implicitly counting on, and it is also the one that becomes dangerous if treated as a vague grace period rather than a tightly conditioned supervisory tolerance.

Here, the EBA advises that an NCA under PSD2 may allow continued provision of EMT transactions qualifying as payment services beyond 2 March 2026 while an application is still pending—including cross-border continuation—but only if cumulative conditions are met: the application must be fully submitted and complete in substance (including the information set expected under PSD2 authorisation requirements and the EBA's authorisation guidance), the applicant must respond quickly and transparently to supervisory questions, the NCA must have satisfied itself that there are no material infringements or supervisory measures under MiCA (or legacy VASP frameworks) or other relevant EU law (notably AML) that would be relevant to PSD2 licensing, and the supervisor must, on a preliminary assessment, have credible grounds to expect that approval will follow within a very short period.

Two additional constraints define the "price" of being tolerated in this corridor: where an NCA permits continuation pending decision, the CASP is expected to stop marketing EMT payment services and to avoid onboarding new clients into EMT payment services during the waiting period.

Finally, the EBA adds a temporal hard-stop logic for Member States that have used MiCA's national transitional latitude up to the maximum date: where a national framework allows certain providers to continue under MiCA transitional regimes until 1 July 2026, the EBA's expectation is that the PSD2-side tolerance should not, in any event, outlive that horizon (or the point at which the MiCA authorisation decision under Article 63 is taken, whichever is earlier).

Scenario 3 — "You must stop and unwind": no application, or an application that does not satisfy the conditions

Where no PSD2 application has been submitted, or where one has been filed but the conditions for scenario-2 tolerance are not met, the EBA's advice to national authorities is blunt: from 2 March 2026, the entity should be required to cease providing EMT services that qualify as payment services under PSD2, and to offboard clients from those services.

3. The hidden compliance trap: "internal" transfers and custody pay-outs can still be PSD2 payment transactions

A recurring strategic misconception—particularly among technology-first teams—is the assumption that PSD2 relevance only arises when funds move between different persons, or when a wallet looks sufficiently like a bank account; the EBA has, in both the June 2025 and February 2026 Opinions, pushed against that simplification by emphasising that certain transfer executions involving EMTs may qualify as PSD2 payment services even where the same user is effectively moving value between "their own" accounts or wallet instances.

In the 2025 No-Action Letter, the EBA addresses the idea of so-called "first-party transfers" and states, in substance, that PSD2 does not carve out an exception merely because the payer and payee are the same payment service user when different payment accounts are involved; therefore, transfers of EMTs between custodial wallets held by the same person can still be treated as payment transactions under PSD2.

The February 2026 Opinion operationalises this point by giving an example that many custody providers should recognise immediately: if a CASP provides custody and administration of EMTs and executes transfers on behalf of clients—including transfers to the same client as part of a custody "pay-out leg"—those transfer executions may themselves constitute payment transactions requiring PSD2 authorisation, irrespective of whether the custodial wallet is ultimately classified as a payment account.

For governance, this is consequential because it means the licensing question cannot be answered solely by product labels ("we are a wallet" / "we are an exchange") but must be answered by transaction mechanics: who instructs, who executes, whose name the account is in, whether third-party send/receive functionality exists, and whether the firm is "in the loop" as an executor rather than merely a technical facilitator (is it a withdrawal even to the same person or is it a currency exchange).

4. Strategic pathways for CASPs handling EMT-based flows: how to choose without sleepwalking into a cliff edge

Because the EBA's supervisory model is now structured around a post-2-March "authorised/partnered/pending-but-complete/otherwise-stop" logic, management teams should treat the coming period as a licensing and business-model design sprint, not as a documentation exercise. In practice, we see four recurring pathways, each with distinct trade-offs:

1. Full PI/EMI authorisation for the EMT payment perimeter. This pathway maximises long-term control over the customer relationship and product roadmap, but it requires (i) a credible governance and risk framework, (ii) capital and safeguarding architecture, and (iii) a supervisory narrative that demonstrates that the firm's crypto-native operating model can satisfy PSD2 requirements where the NAL advised supervisors not to deprioritise (notably strong customer authentication and fraud-relevant controls).
2. Partner-PSP or agent-type structures. These may compress time-to-market and de-risk licensing uncertainty, but they require careful allocation of operational responsibilities (including who "executes" the payment transaction in PSD2 terms), and they must be reviewed not only under PSD2 but also under MiCA, because the EBA explicitly signals that supervisors should evaluate whether the partner PSP itself triggers MiCA authorisation needs.
3. Narrowing the activity so it sits outside the subset treated as payment services. The 2025 No-Action Letter indicates that certain activities—such as exchange services conducted in the provider's own name, or intermediation of purchases in specified ways—were not recommended to be treated as PSD2 payment services for licensing purposes during the intervening period, precisely to avoid an overly broad dual-authorisation burden. However, "narrowing" must be done with forensic attention to factual execution, because as soon as the firm executes transfers on behalf of clients involving EMTs, the PSD2 logic tends to re-enter, and the firm may find itself unintentionally in scenario 3.
4. Leveraging the scenario-2 corridor (pending application). This is not a strategy; it is a contingency posture. It is only credible where the PSD2 file is genuinely complete, interaction with the supervisor is mature, and the firm is prepared to accept business constraints (marketing pause and no new EMT payment clients) that can materially impair growth if this corridor lasts longer than expected.

5. A board-ready action plan: what should be decided, documented, and tested before 2 March 2026

For management and boards, the principal risk is not that the legal texts are unknown, but that the organisation treats "licence readiness" as a compliance function topic rather than as a business continuity and customer trust topic; the EBA's February 2026 Opinion, by explicitly contemplating cessation and client offboarding as supervisory expectations in scenario 3, turns this into a resilience question.

A pragmatic plan—one that can be defended in front of supervisors and investors—typically includes:

• Transaction mapping that follows the money and the instruction chain: catalogue every EMT touchpoint, including internal wallet-to-wallet movements, custody pay-outs, and redemption-adjacent flows, and explicitly classify whether the firm is executing transfers for clients (as opposed to merely providing technical infrastructure).
• A "PSD2 perimeter statement" that can survive supervisory reading: document, for each product feature, why it is or is not within PSD2 payment services as interpreted in the NAL (no-action letter) logic; this is particularly important where marketing language uses payment semantics that may influence supervisory perceptions.
• Licensing route decision with a contingency branch: decide whether the target state is PI/EMI authorisation, partnership, or a narrowed activity model, and—if authorisation is pursued—decide whether scenario-2 corridor reliance is acceptable given the implied marketing and onboarding constraints.
• Supervisory readiness pack: prepare evidence that the application is complete and that responses to NCA queries can be rapid, consistent, and non-defensive, because the EBA explicitly treats responsiveness and completeness as conditions for tolerance.
• Client communications and offboarding playbooks: even if you expect scenario 1 or 2, scenario 3 planning is now a governance obligation; offboarding is operationally complex, reputationally sensitive, and often legally constrained by consumer protection, contractual commitments, and AML considerations.

6. Why a Liechtenstein-based advisory perspective can be an advantage in EMT-payment structuring

Bergt Law advises founders, regulated financial institutions, and crypto-native businesses that operate across borders where the same user journey can trigger multiple regulatory regimes simultaneously, and where governance must be designed so that it remains coherent even when supervisory expectations evolve mid-cycle; in that sense, the EBA's February 2026 Opinion is less a surprise than a predictable maturation step, because it translates the 2025 interpretive compromise into a supervisory prioritisation model that effectively asks: "Are you authorised, are you properly partnered, are you demonstrably close to authorisation, or should you stop?"

For clients, the commercial value of sound legal structuring here is not abstract compliance, but the ability to keep products live—without rushed shutdowns, without regulator-triggered client migration, and without a last-minute scramble that leaks risk into contracts, safeguarding, disclosures, and incident response.

Sources: Opinion of the European Banking Authority on the supervisory priorities at the end of the transition period under the EBA's No Action letter on the interplay between PSD2 and MiCA, EBA/OP/2026/01, 12 February 2026.

Executive Summary:

• 2 March 2026 is the operational cliff edge for EMT-related activities that qualify as PSD2 payment services, because supervisors are instructed to move from transitional tolerance to a scenario-based enforcement posture.
• Three outcomes dominate: (i) authorised/partnered continuity, (ii) narrowly conditioned continuation pending a complete PSD2 application, or (iii) cessation plus client offboarding.
• The "pending application" corridor is conditional and costly: completeness, rapid supervisory responsiveness, clean compliance history, credible near-term approval prospects, and—if tolerated—constraints on marketing and onboarding new EMT payment clients.
• Seemingly "internal" transfers can still be PSD2-relevant: EMT movements between wallet instances of the same user, and custody-related pay-out transfers executed by the CASP, may be treated as PSD2 payment transactions.
• Partnership models require dual-lens scrutiny: a PSP partnership may solve the PSD2 authorisation gap, but supervisors may examine whether the partner PSP triggers MiCA authorisation implications in the chosen structure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.