The MiCA Review Consultation and Private International Law

This post was written by Cayetana Santaolalla Montoya, Associate Professor of Private International Law, Public University of Navarra

The European Commission has opened a targeted consultation on the review of Regulation (EU) 2023/1114 on markets in crypto-assets, the review being mandated by Articles 140 and 142 of that Regulation. The deadline, which was extended, is 30 September 2026.

The consultation is a financial-regulation document and has been read as such. It is worth flagging here because two of the matters it raises fall within the field of this blog: the private-law treatment of tokens, and the conflict of laws.

What the consultation asks

MiCA regulates conduct. It governs who may issue a token, who may hold one for a client and on what terms, and what a service provider must disclose. It does not determine whether a token is an object of property, what constitutes its transfer, or what becomes of a client’s holdings when a custodian fails. Those questions are left to national private law.

The review reopens that allocation. Alongside the scope and definitions of crypto-assets, the regimes for asset-referenced and e-money tokens, and the framework for crypto-asset service providers, the consultation covers matters outside MiCA’s current perimeter, including decentralised finance, staking, lending and non-fungible tokens, and it asks expressly about the private-law treatment of tokens and about conflict of laws.

Why the question is live

National responses have diverged. Germany and Luxembourg have legislated for electronic and dematerialised securities. Liechtenstein, outside the Union, has enacted a general regime of token rights in the TVTG. In England, the Property (Digital Assets etc) Act 2025 confirms that a digital asset may be an object of personal property. Many Member States have legislated nothing. The same token may therefore be property in one forum and not in the next.

The available connecting factors do not resolve this. A token has no situs, and localisation by the holder’s residence, the issuer’s seat, the server or the place of an account is artificial or open to manipulation. The Financial Collateral Directive and the Settlement Finality Directive turn on the location of the account through which book-entry securities are held, and the Hague Securities Convention, to which the Union is not a party, proceeds through the relevant intermediary. A natively issued token in an unhosted wallet has neither account nor intermediary. Rome I and Rome II govern obligations, and neither determines the proprietary effects of a transfer.

The point is not academic. Where a crypto-asset service provider fails, whether a client holds a proprietary claim or ranks as an unsecured creditor has turned on the characterisation adopted by the applicable law, and on little else.

Work already under way

Readers will be familiar with much of the surrounding work. This Association’s Working Group on Digital Assets, co-chaired by Matthias Lehmann and Gilles Cuniberti, published a position paper on the private-international-law aspects of the UNIDROIT Draft Principles in 2023 and is following the joint UNIDROIT and HCCH work on the law applicable to digital assets. The UNIDROIT Principles on Digital Assets and Private Law were adopted in 2023, and the HCCH Experts’ Group on the private-international-law implications of digital tokens continues its work.

At national level, the most developed treatment is the Law Commission of England and Wales consultation paper on digital assets and electronic trade documents in private international law, on which the Commission has not yet reported, and which was the subject of a symposium on this blog in 2025.

What the Commission’s consultation adds is a legislative vehicle. The questions are open inside an instrument that is under review, with a defined timetable, rather than in the abstract.

Responding

Responses may be filed through the Commission’s consultation page until 30 September 2026. Members whose work touches the proprietary treatment of tokens, the custody relationship or cross-border insolvency may find that the consultation reaches their material more directly than its framing suggests.

The present author filed a response in August 2026. It is summarised here and in the working paper Control, Custody and Conflict of Laws: Private International Law and the Regulation of Crypto-assets in the European Union (SSRN, 4 August 2026).