Blockchain Arbitration & Commerce Society (BACS) · 28 September 2026
On 30 September, at 23:59 Brussels time, the European Commission’s consultation on the review of the Markets in Crypto-Assets Regulation closes. Fewer than forty-eight hours remain to respond.
They are worth using, because a consultation of this kind does not come round again. And it is worth being precise about what exactly is closing, because there is a good deal of confusion about it in the sector.
What is being consulted on, and what is not
Whether MiCA takes effect is not being consulted on. MiCA has been applicable law since 2024, and in Spain the transitional period for providers already operating ended on 1 July this year. Anyone providing crypto-asset services to clients established in the Union now requires authorisation as a crypto-asset service provider, granted by a competent authority of a Member State. That is not in question.
What is open is the review: the exercise through which the Commission assesses how the Regulation is working, where it has fallen short, and what should change. It is the moment when the regulator asks the sector what it has learned, before deciding whether to propose reform.
It is therefore the occasion to point out what the rules do not resolve. And that is precisely the ground from which we have responded.
Where we stand: MiCA regulates the provider, not the relationship
Our submission starts from an observation we have developed in these pages: MiCA builds a solid regime of authorisation, governance, custody and transparency, directed at whoever provides the service. It establishes who may operate, under what organisational requirements, what must be disclosed and to whom the provider answers before the supervisor.
What it does not address is the other plane: what happens between the parties when something goes wrong.
A financial supervision regulation is not there for that, and saying so is not a criticism. But the practical consequence is that three questions which decide real disputes are left without a harmonised European answer.
The first is what the asset legally is. MiCA defines it for the purposes of its own scope, not for the purposes of private law. Whether a crypto-asset is property, a claim, or something else; whether it can be owned, pledged or attached, is still decided by each national law, with results that differ between Member States.
The second is enforcement. Obtaining a favourable decision is one thing; that decision reaching the asset is another. A ruling obliges a person to do something: it does not itself move an asset on a blockchain, nor reverse a confirmed transaction, nor reach someone who controls a set of keys and chooses not to comply.
The third is the forum. Where the parties sit in different States, the contract is a programme deployed on a network with no seat and the object is nowhere in particular, determining which court has jurisdiction and which law applies consumes months before the merits are even reached. Meanwhile, the asset moves.
None of the three is fixed by widening the authorisation perimeter. They are questions of private law, of procedure and of enforcement, and they call for different instruments.
What happens after 30 September
It is worth being realistic about timescales, because reform is announced in this sector with a lightness that helps nobody.
Once the consultation closes, the Commission analyses the responses and prepares its review report. Only then, and only if it concludes that reform is needed, would a legislative procedure open, passing through Parliament and Council. Between the close of a consultation and the application of revised rules, ordinary European experience puts several years.
That has an uncomfortable reading and a useful one. The uncomfortable reading is that nothing said this week will change the applicable framework in the short term. The useful one is that decisions about what is taken up and what is set aside are made now, during the analysis phase, while there is still no text to defend. Whoever wants to influence the outcome influences it at this stage.
What we will do
Three things, set out in writing so that we can be held to them.
We will address to the Directorate-General for Financial Stability, Financial Services and Capital Markets Union a submission developing the private-law gap argument in greater detail, with the references and examples the consultation form does not allow.
We will complete the BACS Global Report, the comparative study we are preparing with authors from ten jurisdictions on how an arbitral award over crypto-assets would actually be enforced. Once compiled and published with a DOI, it will be evidence rather than opinion: a map of what works and what does not, country by country. That is what the analysis phase needs and what almost nobody is supplying.
And we will continue publishing the progress of both here, openly and in both languages.
If you are still in time
If you operate with crypto-assets in the Union and have not responded, you have until the day after tomorrow. A lengthy document is not required: the consultation accepts partial responses, and one concrete observation about a real problem encountered in your own activity is worth more, at this stage, than a general position on the sector.
What will not come round again is the opportunity.
BACS is a non-profit arbitration institution registered in the EU Transparency Register (REG 9106897105368-14) and operates a Court of Arbitration specialised in digital assets. This article is for informational purposes and does not constitute legal advice.
This article continues our analysis of the private-law gaps the MiCA review does not cover.
