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On 12 February 2026, the European Banking Authority (EBA) published an opinion on actions for national competent authorities (NCAs) to take at the end of the transition period set in its 2 June 2025 no action letter regarding the interplay between the second Payment Services Directive (PSD2) and the Markets in Crypto Assets Regulation (MiCAR).
The transition period ends on 2 March 2026 and the recent EBA opinion may be relevant to crypto asset service providers (CASPs) that transact electronic money tokens (EMTs).
For further information on the June 2025 EBA no action letter, please see our article here.
In the opinion, the EBA guides NCAs by:
- Setting out the conditions under which NCAs can allow CASPs to continue providing EMTs (that qualify as a payment service) after 2 March 2026, while they do not yet hold a licence under PSD2
- Advising NCAs to require CASPs that fail to meet all these conditions to discontinue the provision of the relevant EMT services
- Advising NCAs to co-operate with relevant national authorities and other enforcement authorities to ensure compliance.
Scenarios outlined by the EBA
The CASP has successfully obtained an authorisation as a PI/EMI or has partnered with a PSP authorised to provide the respective services
The CASP is allowed to continue carrying out EMT transactions in a way commensurate with its PSP authorisation (or, respectively, the authorisation of the partner PSP).
In the latter case, NCAs are advised to assess whether the partner PSP requires authorisation under Article 59 of MiCAR.
The CASP has applied for authorisation but has not (yet) obtained an authorisation as a PI/EMI
The NCA under PSD2 can allow the CASP to continue carrying out EMT transactions that qualify as payment services (which includes the continuation of such services on a cross-border basis) pending its decision on the application for authorisation under PSD2, if all the following conditions are met:
- The application for authorisation has been duly submitted to the NCA under PSD2 and the relevant NCA has obtained all information and documents required under Article 5 of PSD2 and the EBA Guidelines on the authorisation of payment institutions whether provided directly by the applicant or, where applicable, by the NCA under MiCAR, with a view to allow the NCA to assess the application.
- The applicant responds to queries from the NCA under PSD2 in an exhaustive, transparent and expeditious manner.
- The NCA under PSD2 has checked that the applicant has not been subject to any supervisory measures, nor has it infringed any requirements under MiCAR (or national VASP regimes) or other EU law (such as on anti-money laundering) that would be material and relevant for an authorisation under PSD2, including by interacting with the respective NCA under MiCAR (or national VASP regimes) where needed.
- Based on its preliminary assessment, the NCA under PSD2 has no reason to expect the applicant is not able to comply with PSD2, and there are reasonable grounds to expect that the application will be approved within a very short time frame.
In the case of CASPs benefitting from a national framework that has implemented the maximum grandfathering transition period until 1 July 2026, the respective NCA under PSD2 is advised to ensure that the aforementioned very short time frame does not extend beyond the 1 July 2026 deadline, or the date on which such entities are granted or refused authorisation under MiCAR, whichever occurs earlier.
However, in Ireland, a grandfathering period of 12 months (rather than the maximum 18 months permitted under MiCAR) applies. For further information on the Irish grandfathering period for existing CASPs providing services after the date of application of MiCAR, please see our article here.
If the CASP meets all the conditions applicable under scenario 2, and can continue carrying out EMT transactions, the NCA should ensure that, while awaiting the outcome of their authorisation process, the CASP:
- ceases all marketing activities related to EMTs that qualify as a payment service, and
- does not provide EMT services (that qualify as a payment service) to any new clients.
NCAs under PSD2 are advised to coordinate the possible imposition of these restrictions with NCAs under MICAR, for example by inserting corresponding restrictions to existing CASP authorisations and/or by referring the case to the respective enforcement departments.
The above restrictions do not apply to CASPs that are permitted under national law transposing MiCAR to continue providing their services until 1 July 2026, or the date on which such entities are granted or refused authorisation under MiCAR, whichever occurs earlier.
The preliminary assessment referred to at the beginning of condition 4 does not prevent the NCA under PSD2 from eventually rejecting the application.
The CASP has not submitted an application, or it has submitted an application but has not met one or more of the conditions articulated under scenario 2
In this situation, the NCA under PSD2, in conjunction with colleagues or other national enforcement authorities, is advised to require the CASP, as of 2 March 2026:
- to cease the activity of providing EMT services that qualify as a payment service under PSD2; and
- to offboard clients of EMT services that qualify as a payment service under PSD2.
Execution of payment transactions
When assessing whether CASPs require authorisation under PSD2, NCAs are reminded by the EBA that the execution of transfers involving EMTs may qualify as a payment service (e.g., payment service 3 of Annex I to PSD2 (execution of payment transactions)), regardless of whether the custodial wallets offered by the CASP qualify as payment accounts.
As clarified in para. 71 of the NAL, "PSD2 does not make an exception for payment transactions executed from/to different payment accounts held by the same payment service user, even if they are serviced by the same PSP. Therefore, first-party transfers of EMTs would still qualify as payment transactions and therefore be subject to PSD2 rules".
The EBA gives the example of where a CASP provides custody and administration of EMTs and executes transfers of EMTs on behalf of clients, including transfers to the same client as part of the pay-out leg of custody, such transfers may themselves constitute payment transactions requiring authorisation under PSD2, irrespective of whether the custodial wallet qualifies as a payment account.
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.
