MiCAR Whitepaper for Utility Token Offerings in Germany: Legal Requirements at a Glance
- RA Dr. Hendrik Müller-Lankow, LL.M. (UCL)
- 1 day ago
- 2 min read
Since 2025, the issuance of utility tokens may fall within the scope of the Markets in Crypto-Assets Regulation (MiCAR). This means that such issuance is only permissible under certain conditions. In particular, the issuer is required to publish a white paper. Furthermore, BaFin (the German Federal Financial Supervisory Authority) has specific supervisory powers, and a special liability regime applies.
Germany as a Home Member State
Issuers of utility tokens that are not established in a Member State of the European Union (EU) or the European Economic Area (EEA) are not excluded from offering their tokens on the European market. They may designate Germany as their home Member State if the tokens are intended to be offered to the German public first or if the first application for admission to trading is to be submitted to a crypto-asset trading platform established in Germany. Once Germany has been selected as the home Member State, the token offering may be passported throughout the EU/EEA.
To Which Utility Token Offerings Does MiCAR Apply?
As a general rule, public offerings of utility tokens are subject to regulation under MiCAR. Utility tokens are defined as crypto-assets that are intended solely to provide access to goods or services that are offered by the issuer of the token.However, an exemption applies where the utility tokens provide access to goods or services that already exist or are already being provided. In such cases, a white paper under MiCAR is not required. This exemption, however, only applies to the public offering of the utility tokens. It does not apply where an application for admission to trading of the tokens is submitted.
The White Paper for Utility Tokens
The white paper must be published prior to the public offering and submitted to BaFin. Unlike securities prospectuses, no prior approval by BaFin is required. Nonetheless, BaFin has supervisory powers and may prohibit the public offering if the white paper does not meet the legal requirements.Detailed regulatory requirements regarding the content and format of the white paper are set out in Annex I to MiCAR, in Implementing Regulation (EU) 2024/2984, and in Delegated Regulation (EU) 2025/422. In addition, issuers must observe certain principles established by the case law of the German Federal Court of Justice (BGH) on prospectus liability under civil law, as these may often be applied by analogy to crypto white papers.Although Implementing Regulation (EU) 2024/2984 will formally enter into application on 23 December 2025, it is advisable to align the structure of white papers with its requirements already before that date. From the effective date onwards, white papers must be prepared and published as XHTML documents using XBRL.
Kronsteyn Law Firm provides legal support in German and EU law throughout the implementation of your token offering. Your contact person: Attorney at law Dr. Hendrik Müller-Lankow.
