𝗡𝗮𝘃𝗶𝗴𝗮𝘁𝗶𝗻𝗴 𝘁𝗵𝗲 𝗠𝗶𝗖𝗔–𝗣𝗦𝗗𝟮 𝗜𝗻𝘁𝗲𝗿𝗽𝗹𝗮𝘆 𝗳𝗼𝗿 𝗡𝗼𝗻-𝗘𝗠𝗧𝘀

1. Introduction

With the full application of the Markets in Crypto-Assets Regulation (MiCA), the European Union has taken a significant step toward harmonising its approach to crypto regulation. MiCA, however, primarily focuses on crypto-assets, their issuers, and crypto-asset service providers (CASPs). The regulation draws clear lines for e-money tokens (EMTs)—those referencing a single official currency—and asset-referenced tokens (ARTs)—those referencing multiple assets or a non-fiat reference. At the same time, Directive (EU) 2015/2366 (PSD2) sets out requirements for payment services in the EU.

A great deal of attention has been given to the overlap of MiCA and PSD2 for e-money tokens, as these are deemed to be electronic money under MiCA and, hence, “funds” within the meaning of PSD2. Yet there remains an important question: how might PSD2 obligations arise for crypto-assets that are not EMTs—for example, traditional cryptocurrencies like Bitcoin (BTC), Ether (ETH), or other tokens with no declared peg to a single official currency?

In practice, non-EMT tokens may still be used as a medium of exchange or value transfer. Although they do not meet the formal MiCA definition of an EMT, their handling could potentially trigger PSD2 obligations under certain business models. This paper explores:

1. Where the overlap between MiCA and PSD2 might arise for non-EMT crypto-assets.
2. Why payment functionality—and not merely stablecoin classification—can bring PSD2 into play.
3. Practical scenarios illustrating when “pure” crypto services might inadvertently qualify as payment services.
   ‍

2. Regulatory Context

Article 70.4 of MiCA states: “Crypto-asset service providers may themselves, or through a third party, provide payment services related to the crypto-asset service they offer provided that the crypto-asset service provider itself, or the third party, is authorised to provide those services under Directive (EU) 2015/2366 (PSD2).”

2.1 MiCA’s Classification of Tokens

MiCA establishes a taxonomy of crypto-assets:

• E-Money Tokens (EMTs): Tokens that maintain a stable value by referencing a single official currency. MiCA explicitly recognises these as electronic money, thereby triggering PSD2 licensing requirements (unless conducted through an authorised payment institution or e-money institution).
• Asset-Referenced Tokens (ARTs): Tokens that reference multiple fiat currencies, commodities, or crypto-assets.
• Other Crypto-Assets (e.g., Bitcoin, Ether): Tokens not classified as EMTs or ARTs fall into a broad category, often simply called “crypto-assets.”

For crypto-assets, MiCA primarily addresses transparency, market integrity, custody, authorisation of service providers, and consumer protection. It does not automatically deem these assets to be “funds,” unlike EMTs.

2.2 PSD2 Overview

PSD2 is about payment services, including:

• Executing payment transactions (moving “funds” on behalf of payers/beneficiaries).
• Operating payment accounts (storing and transferring funds for clients).
• Issuing payment instruments, such as debit cards linked to accounts where value is stored and managed.

Funds under PSD2 include electronic money and “banknotes and coins, scriptural money.” While non-EMT crypto-assets do not fit neatly into PSD2’s definition of “funds,” certain use cases (e.g., converting crypto on the fly to fiat to pay a merchant) may still be captured under PSD2 if the service is structured in a way that effectively executes a payment in fiat.

‍

3. The Potential Overlap for Non-EMT Crypto-Assets

3.1 When Does Non-EMT Crypto Become a Payment Service?

A key question in the market—highlighted in ongoing discussions among legal practitioners and regulators—is: If a crypto-asset is not recognised as e-money, can its transfer or conversion still trigger PSD2 licensing? It may, if the service meets the criteria of executing or facilitating a payment in fiat on behalf of clients.

3.1.1 Payment Function vs. Transfer of Value

• Payment Function: PSD2 is traditionally associated with transferring “funds” (fiat or e-money) from a payer to a payee.
• Transfer of Value: A service involving crypto-to-crypto or crypto-to-fiat conversion may look like a “transfer of value” without necessarily being a “payment.” However, it can become a payment service if fiat is ultimately disbursed to a payee, merchant, or other third party.

PSD2 covers more than just classic “payments;” it can also apply to money remittance activities. Even if BTC or ETH are not “funds” per se, once you incorporate a conversion step to fiat and send it on behalf of a client, the final link in that chain might qualify as a regulated payment service.

‍

4. Regulatory Interpretations and Diverging National Views

4.1 Bank of Italy’s Position

Discussions reveal that Bank of Italy has specifically emphasised that EMTs are designed as payment instruments, implying any transfer of EMTs is presumptively tied to payment services. Conversely, non-EMT assets (BTC, ETH, or typical altcoins) do not inherently constitute e-money; therefore, the presumption is they do not require a PSD2 license for mere transfers.

However, the specific service model matters. If non-EMT crypto is converted into fiat and then transmitted to a third party, PSD2 may apply because the provider is moving fiat on a customer. Even if the crypto piece alone falls under MiCA.

4.2 Member State Variations

Not all regulators share the same stance. Certain national competent authorities interpret “transfers of value” more strictly, applying PSD2 more broadly even where non-EMT tokens are involved. Others take a narrower view, focusing on whether fiat actually changes hands. This fragmented approach leaves crypto-service providers uncertain, often needing to seek local legal opinions for each jurisdiction in which they operate.

‍

5. Practical Scenarios Illustrating Overlaps

5.1 Salary Payments in Crypto

Scenario: A company wants to pay their employees’ salaries in BTC. 

MiCA: If the employer pays salary in BTC directly to the employee’s wallet and the employee on their own initiative does conversion to fiat, this likely does not require PSD2 authorization by any involved third party services handling the salary payments.

PSD2: If the employer pays salary in BTC to the employee’s bank account and a third-party service enables automated conversion of BTC to EUR and distributes those EUR to employee bank accounts. The third party service will need a PSD2 license.

5.2 Crypto-Denominated Invoices

Scenario: A B2B invoice is denominated in ETH, and the supplier outsources the invoice creation, collection and conversion process to a third party

MiCA: The third party provides custody, conversion and issuance of invoices, such that any issued invoices are paid in ETH to the company’s wallet, where on its own initiative the company can convert to EUR. This will likely not require a PSD2 license.

PSD2: The third party provides conversion and issuance of invoices, such that any issued invoices are paid in ETH, converted to EUR and paid to the company’s bank account. This will require a PSD2 license.

5.3 Peer-to-Peer Crypto Exchange

Scenario: A platform allows users to swap BTC and ETH on a purely peer-to-peer basis, without ever facilitating or holding fiat.

MiCA: Operating a crypto-to-crypto trading platform or exchange service would typically fall under MiCA, so the provider would need a MiCA license (assuming the platform qualifies as a regulated service under MiCA).

PSD2: Since no fiat leg is involved and no “funds” (in the sense of PSD2) are moved on behalf of users, no PSD2 licensing is required.

Caution: If the same platform eventually integrates fiat on-/off-ramps (such as bank account withdrawals or card payments), the PSD2 scope might be triggered because it would then be handling or transferring fiat on behalf of clients.

5.4 Debit Cards Linked to Crypto Balances

Scenario: A consumer holds BTC in a wallet, and a debit card provider converts BTC to EUR in real time when the consumer pays at a point of sale.

MiCA: The wallet and the crypto side of the transaction—including the conversion from BTC to EUR—may fall under MiCA’s provisions, requiring authorisation if it is a regulated crypto-asset service. MiCA ensures consumer protection, transparency, and responsibility regarding the crypto element.

PSD2: Once EUR is transferred to the merchant as a payment for goods or services, this fiat leg is deemed a payment transaction. Therefore, PSD2 licensing is necessary for the service provider (unless they partner with a licensed payment institution). The key factor is that the service provider is executing a fiat payment on behalf of the consumer, even if the funds originally are in crypto.

5.5 Crypto Payment Gateways & Merchant services

Scenario: A gateway or payment processor enables merchants to accept non-stable crypto-assets (e.g., BTC, ETH) from customers and automatically converts them into fiat.

MiCA: If the merchant’s wallet directly receives the crypto and separately arranges conversion with a broker (or the merchant executes the conversion on its own initiative), this would likely only require a MiCA license.

Caution: Facilitating crypto transactions, even if payments for goods or services, should be covered by MiCA. But it cannot be ruled out that supervisors in some member states might still consider it a payment because it is made in exchange for a good or service. In that case you will need a PSD2 license.

PSD2: If the gateway actively intermediates between the payer’s crypto and the payee’s fiat, holds or controls the resulting fiat funds on behalf of the merchant or user, and then transmits them to the merchant’s bank account, it is likely providing a regulated payment service. In such a setup, the gateway must hold (or partner with) a PSD2 license to process fiat payments to the merchant.

5.6 Placing of Crypto Assets

Scenario: A CASP licensed to perform the placement of crypto-assets (e.g., facilitating ICOs or token offerings) is helping an issuer bring a new crypto-asset to market and prospective buyers pay, in either crypto or fiat.

MiCA: Provided the CASP also is licensed to handle custody and conversion, a person sending EUR to the CASP, converting them to crypto and investing crypto into the ICO should be within the boundaries of MiCA.

PSD2: If the CASP directly processes or controls the flow of fiat payments from investors (for instance, collecting EUR and paying them out  to the issuer’s bank account or directly converting into crypto and sending them to the ICO smart contract), it may be performing a payment service that requires as PSD2 license or a partnership with a PSD2 licensed entity.

‍

6. Managing the Overlap: Key Takeaways

1. Non-EMT Crypto-Assets: Although not considered e-money, these assets can still trigger PSD2 obligations if the business model involves handling fiat or transferring fiat on behalf of clients.
2. Business Model Is Determinative: Regulators focus on whether your service involves facilitating fiat-based payments or money remittances, not merely on the classification of the token.
3. National Regulator Guidance: Diverging views and limited guidance mean providers must stay abreast of local interpretations in each Member State.
4. Structuring Services Wisely:

• If your service involves pure crypto-to-crypto exchanges or users directly handling conversions, you remain primarily under MiCA.
• If you facilitate a fiat leg and hold or distribute fiat on behalf of clients, you likely need a PSD2 license (or a partnership with an authorised payment institution).

5. Payments in crypto: Some supervisors might still consider a pure crypto payment (different from a transaction) a payment that requires a PSD2 license.

‍

7. Conclusion

While regulatory debates have concentrated on EMTs because they are explicitly deemed to be electronic money under MiCA, non-EMT crypto-assets also pose significant PSD2 considerations. The distinction often turns on functional usage rather than mere token classification. As soon as a service involves the transfer or control of fiat funds on behalf of clients—especially in the context of merchant payments, salary payments, or other real-world transactions—PSD2 enters the picture.

Whether you are a trading platform, a wallet provider with a debit card, a payment gateway, or a crypto invoicing service, it is crucial to map out your operational flows:

• Does your service handle fiat at any point, on behalf of customers?
• Are you effectively converting crypto to fiat for third parties?
• Is your role purely crypto exchange, or do you also deliver fiat to external recipients?

Answering these questions clarifies whether you need a PSD2 license or if you can rely solely on MiCA authorisation. In the face of still-evolving guidance from regulators and divergent interpretations across Member States, a cautious and well-structured approach ensures legal certainty. Ultimately, even for non-EMT crypto-assets, providers need to be vigilant: PSD2 can still come knocking when fiat flows are introduced into the equation.

‍

Disclaimer

This whitepaper is for informational purposes only and does not constitute legal advice. The interpretations, examples, and scenarios described herein may vary depending on local regulatory positions and ongoing legislative developments (including any future ‘PSD3’ or delegated acts related to MiCA). Stakeholders should consult professional advisers and closely monitor guidance from EU and national regulators to ensure full compliance.

‍

About Januar

This whitepaper was developed by Januar.

Januar is a leading Payment Institution (PI) and Crypto-Asset Service Provider (CASP) committed to empowering fellow CASPs in navigating the complex regulatory landscape where MiCA and PSD2 intersect. With deep expertise in both digital payment solutions and crypto regulatory compliance, Januar offers comprehensive support to help providers manage the challenges posed by overlapping requirements.

Our team combines regulatory insights with innovative technology to design tailored solutions that streamline compliance processes, ensuring that our partners can focus on their core business while mitigating regulatory risks. Whether it’s managing fiat conversion processes or structuring payment services in line with both MiCA and PSD2, Januar is your trusted partner in achieving robust, compliant financial operations.

‍

Download whitepaper here