Commission Delegated Regulation (EU) 2025/1141 of 27 February 2025 supplementing Regulation (EU) 2023/1114 of the European Parliament and of the Council as regards regulatory technical standards specifying the requirements for policies and procedures on conflicts of interest for issuers of asset-referenced tokens

• CELEX: Delegated Regulation (EU) 2025/1141
• Articles: 9

Article 1 Definitions

For the purposes of this Regulation, the following definitions apply:

(a)

‘connected person’ means any of the persons referred to in Article 32(1), points (a) to (d) and point (f), of Regulation (EU) 2023/1114;

(b)

‘group’ means a group as defined in Article 2(11) of Directive 2013/34/EU of the European Parliament and of the Council  ( 5 ) .

Article 2 Conflicts of interest potentially detrimental to the issuer of asset-referenced tokens

1.   The policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 to identify, prevent, manage and disclose conflicts of interests potentially detrimental to the issuer of asset-referenced tokens shall specify the circumstances which are capable of directly or indirectly affecting the objectivity and impartiality of the connected persons in exercising their duties and responsibilities. Such policies and procedures shall take into account situations or relationships where a connected person:

(a)

has an economic interest in a person, body or entity with interests conflicting with those of the issuer of asset-referenced tokens;

(b)

holds responsibilities within a person, body or entity with interests conflicting with those of the issuer of asset-referenced tokens;

(c)

is hierarchically supervised by a person with interests conflicting with those of the issuer or the holders of asset-referenced tokens;

(d)

has a relationship of a personal, professional or political nature with a person, body or entity that has interests conflicting with those of the issuer of asset-referenced tokens or has had such a relationship within the last 3 years from when the assessment is made;

(e)

carries out activities in competition with those of the issuer of asset referenced tokens, including those as a consultant, adviser, delegatee, outsourcee, third-party service provider, subcontractor or other supplier of a person, body or entity conducting the same business as the issuer of asset-referenced tokens.

2.   With regard to the scenarios set out in paragraph 1, issuers of asset-referenced tokens shall take into account whether those persons, bodies or entities:

(a)

are likely to make a financial gain, or avoid a financial loss, at the expense of the issuer of asset-referenced tokens;

(b)

have an interest in the outcome of an activity carried out or the effect resulting from a decision taken by the issuer of asset-referenced tokens and that interest is conflicting with those of the issuer of asset-referenced token.

3.   With regard to the identification of the economic interest referred in paragraph 1, point (a), issuers of asset-referenced tokens shall take into account situations where the connected person who is a member of the management body or an employee of the issuer:

(a)

holds ownership rights and tokens (including governance tokens), or membership in that person, body or entity;

(b)

holds any type of debt with that person, body or entity;

(c)

has any form of contractual arrangements related to the activities regulated under Regulation (EU) 2023/1114 with that person, body or entity.

4.   Conflict of interests policies and procedures shall ensure that transactions consisting in the exchange of asset-referenced tokens issued by the issuer of asset-referenced tokens for funds or other crypto assets, including redemption of asset-referenced tokens, are subject to close scrutiny and monitoring with regard to the conditions in which they are concluded where the issuer is one of the parties of the transaction and the transaction is carried out on behalf of any of the following persons:

(a)

a member of the management body of the issuer or an employee who can negotiate or sign contracts on behalf of the issuer;

(b)

a party related to a person referred to in point (a) as follows:

(i)

a spouse, registered partner, child or parent;

(ii)

any relative who has shared the same household with that person for at least a cumulative time period of one year within the previous 5 years from the date of the transaction;

(iii)

a commercial entity, in which a person referred to in point (a) or points (b)(i) and (b)(ii) has a qualifying holding of 10 % or more of capital or of voting rights, or in which those persons are key function holders as defined in Article 3(1)(9) of Directive 2013/36/EU of the European Parliament and of the Council  ( 6 ) , hold senior management positions or are members of the management body;

(c)

a person in respect of whom the persons referred to in points (a) or (b) have direct or indirect material interest as regards the outcome or the conditions of the transaction, other than obtaining a fee or commission for the execution of the transaction.

Article 3 Conflicts of interest potentially detrimental to the holders of asset-referenced tokens

1.   The policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 to identify, prevent, manage and disclose conflicts of interest potentially detrimental to the holders of asset-referenced tokens shall address conflicts of interest that arise in the course of issuing, processing and redeeming asset-referenced tokens or of investing or managing the reserve of assets referred to in Article 36 of Regulation (EU) 2023/1114, and shall cover any of the following situations:

(a)

a connected person is likely to make a financial gain, avoid a financial loss, or receive another kind of benefit, to the detriment of the holder of asset-referenced tokens;

(b)

a connected person has an interest in the outcome of an activity carried out to the benefit of the holder of asset-referenced tokens, including the redemption of the token, which is distinct from the interest of the holder of asset-referenced tokens.

2.   When identifying the types of conflicts of interest that arise in the course of the activities referred to in paragraph 1, issuers of asset-referenced tokens shall assess whether they or a member of their management body or one of their employees receive or will receive from a person other than the holder of asset-referenced tokens an inducement in relation to that activity in the form of monetary or non-monetary benefit or services in a way that may damage the interest of the holder of asset-referenced tokens.

Article 4 Policies and procedures

1.   The policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 shall be set out in writing and shall reflect the size, complexity and nature of the asset-referenced token and the range of activities carried out by the issuer of asset-referenced tokens and the group to which it belongs.

2.   The management body of the issuer of asset-referenced tokens shall be responsible for the definition, adoption and implementation of these policies and procedures. It shall periodically identify and address any deficiencies in the effectiveness of those policies and procedures.

3.   Issuers of asset-referenced tokens shall establish effective internal communication channels to inform and provide ongoing access to employees and members of the management body of their conflict of interest policies and procedures and provide appropriate updated trainings on those conflict of interest policies and procedures.

Issuers of assets-referenced tokens shall establish effective external communication channels to inform third parties of their conflict of interest policies and procedures.

4.   Where the issuer of asset-referenced tokens is a member of a group, the policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 shall cover conflicts of interest between the issuer and other group entities.

5.   The policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 shall include:

(a)

a description of the circumstances which may give rise to a conflict of interest in accordance with Articles 2 and 3;

(b)

the processes to be applied in order to identify, prevent, manage, and disclose the conflicts of interest referred to in Articles 2 and 3.

6.   The processes referred to in paragraph 5 shall differentiate between conflicts of interest that persist and need to be managed permanently and those that occur occasionally and need to be mitigated by a case-specific measure.

7.   The processes referred to in paragraph 5 shall include a description of the following:

(a)

effective processes to promptly report and communicate through appropriate internal reporting channels of any matter that may result, or has resulted, in a conflict of interest;

(b)

effective processes to prevent and control the exchange of information between connected persons engaged in activities where a conflict of interest may arise, where the exchange of that information may harm the interests of the holder of asset-referenced tokens or may affect the performance of such connected person’s duties and responsibilities;

(c)

measures to ensure that conflicting activities or transactions are entrusted, where possible, to different persons within the same issuer of asset-referenced tokens or otherwise subject to targeted monitoring and measures that achieve the same effect;

(d)

measures to ensure that connected persons who perform outside business activities related to the issuer of asset-referenced tokens are prevented from having inappropriate influence within the issuer of asset-referenced tokens regarding those activities;

(e)

measures to ensure that the risk of conflicts of interest is addressed at the level of the management body or by its responsible committee. Those measures shall ensure that the members of the committee or members of the management body do not have a conflict of interest and shall provide sufficient guidance on the identification and management of conflicts of interest that may affect the members of the management body to take objective and impartial decisions in the best interests of the issuer of asset-referenced tokens;

(f)

measures to ensure the conferral of the responsibility to the members of the management body to inform other members of and abstain from voting on any matter where the members have or may have a conflict of interest or where the objectivity of those members or ability to properly fulfil their duties towards the issuer of asset-referenced tokens may be otherwise compromised;

(g)

measures to ensure that members of the management body are prevented from being a member of the management body in the management or supervisory function in competing issuers of asset-referenced tokens.

8.   Where the conflicts of interest policies and procedures are insufficient to prevent or mitigate the risks of damage to holders of asset-referenced tokens or the issuer of asset-referenced tokens’, the issuer shall amend the policies and procedures to address any deficiencies.

9.   The policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 shall require issuers of asset-referenced tokens to keep records and document the types of activities or situations giving rise or which may give rise to the conflicts of interest referred to in Article 2(1) and Article 3(1) and, for each type of activity or situation, the measures taken to prevent or mitigate such conflicts. The records shall be kept for a retention period of 5 years.

10.   The policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 shall ensure that the transactions referred to in Article 2(4) are identified by or notified to the issuer of asset-referenced tokens before a decision on the execution of the transaction and its conditions is taken. Those policies and procedures shall also ensure that decisions to enter into such transactions are taken objectively, in the interest of each party, and that the conditions for the transaction are the same as the conditions that apply between independent parties for the same transactions in the absence of a conflict of interest.

11.   In relation to the transactions referred to in Article 2(4), the policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 shall ensure that:

(a)

decision-making processes for entering into those transactions are set out and that thresholds, expressed as the volume of the transaction, above which such a transaction requires the approval by the management body are established;

(b)

employees and members of the management body are made aware of the rules applied on those transactions, and of the measures established by the issuer of asset-referenced tokens in relation to them;

(c)

the issuer of asset-referenced tokens is informed promptly of any of those transactions;

(d)

a record is kept of the transaction notified to or identified by the issuer of asset-referenced tokens, documenting the date and time of the transaction, the conditions, its volume, the counterparty and any authorisation or prohibition in connection with that transaction.

Article 5 Policies and procedures in the context of remuneration

Issuers of asset-referenced tokens shall, within the policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114, ensure that remuneration procedures, policies and arrangements:

(a)

do not create a conflict of interest or provide for incentives in the short, medium or long term for the employees or members of the management body to favour their own interests or the interests of the issuer of asset-referenced tokens to the detriment of any holder of asset-referenced tokens or shareholders or members of the issuer of asset-referenced tokens;

(b)

identify and mitigate any potential conflicts of interest which may be caused by the award of variable remuneration, underlying key performance indicators and risk alignment mechanisms, including the pay out of instruments to employees or management body as part of the variable or fixed remuneration.

Article 6 Policies and procedures on arrangements with third-party service providers

Issuers of asset-referenced tokens shall within the policies and procedures under this Regulation ensure that no written arrangement with a third-party service provider is concluded unless:

(a)

the written arrangement obliges the third party to act in a manner consistent with those policies and procedures;

(b)

the written arrangement ensures that when the services referred to in Article 34(5), point (h), of Regulation (EU) 2023/1114 are provided by a third party that is part of the same group as the issuer of asset-referenced tokens, decisions related to the provision of third-party services are taken objectively, in the interest of each party and under the same conditions that would apply if the agreement to provide services had been entered into by independent parties;

(c)

issuers of asset-referenced tokens ensure that the fees offered to provide one of the services referred to in Article 34(5) point (h) of Regulation (EU) 2023/1114 do not promote the interests of the issuer of asset-referenced tokens or the third party in a way that may conflict with the interests of a holder of asset-referenced tokens.

Article 7 Policies and procedures on resources for the management of conflicts of interest

1.   The policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 shall ensure that resources necessary to manage conflicts of interest are allocated and managed effectively.

2.   The policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 shall ensure that the issuer of asset-referenced tokens appoints a person responsible for the identification, prevention, management and disclosure of conflicts of interest. That person shall have the authority necessary to discharge its responsibilities appropriately and independently and shall report directly to the management body. Those policies and procedures shall ensure that any other task or function that that person may also be responsible for, does not compromise that person’s ability to perform, independently the identification, prevention, management and disclosure of conflicts of interest.

3.   The policies and procedures referred to in Article 32(1) of Regulation (EU) 2023/1114 shall define the minimum skills and knowledge necessary for employees to identify, prevent, manage and disclose conflicts of interest under this Regulation.

Article 8 Disclosures of the general nature and source of conflicts of interest and the steps taken to mitigate them

1.   Issuers of asset-referenced tokens shall keep the content of the disclosure referred to in Article 32(3) of Regulation (EU) 2023/1114 updated at all times.

2.   The disclosure made in accordance with Article 32(3) of Regulation (EU) 2023/1114 shall provide information on:

(a)

the circumstances and situations giving rise or which may give rise to conflicts of interest referred to in Article 2(1) and Article 3(1), including the role and capacity in which the issuer of asset-referenced tokens is acting in relation to the holder of asset-referenced tokens;

(b)

whether the issuer of asset-referenced tokens is also a crypto asset-service provider;

(c)

the risks identified in relation to the conflicts of interest referred to in point (a);

(d)

the steps and measures taken to prevent or mitigate the identified conflicts of interest.

3.   The disclosure of information in accordance with paragraph 2 shall not be considered as a sufficient way to manage and mitigate conflicts of interest.

4.   The information referred to in paragraph 2 shall be made accessible to holders and prospective holders of asset-referenced tokens on the website of the issuer of asset-referenced tokens at all times. If the issuer of asset-referenced tokens offers asset-referenced tokens to the public or seeks admission to trading on a trading platform the issuer of asset-referenced tokens shall make the information available on that trading platform.

5.   The information referred to in paragraph 2 shall be made available by the issuer of asset-referenced tokens in an official language of the home Member State and in a language which is customary in the sphere of international finance.

Article 9 Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .