More and more commercial companies are incorporating crypto assets into their treasury, whether as an investment, means of payment or diversification.
The issue is no longer solely technological, but also legal : what responsibility do administrators assume if the company's digital funds are lost, blocked, or mismanaged?
The recently adopted MiCA Regulation (EU) 2023/1114 , which will be phased in from June 2024, establishes for the first time a harmonized framework in the European Union for the issuance, offering, and custody of crypto assets. Although transitional periods are still in place, its impact on business and corporate governance is undeniable.
From intangible asset to regulated asset
Until now, cryptocurrencies were treated in accounting as non-financial intangible assets , which generated legal uncertainty and discrepancies in their valuation.
With MiCA, crypto issuers and service providers are subject to transparency, authorization, and governance requirements that provide greater strength to their legal standing.
For the company, this means that:
- The accounting record must be accompanied by verifiable traceability.
- The responsibility of directors is no longer measured only by internal diligence, but also by the compliance with European standards.
Custody: a reinforced duty of care
One of the key points of the Regulation is the custody and administration of crypto assets on behalf of clients.
In the corporate sphere, this means that if the company decides to manage its own wallets:
- Administrators must establish security protocols and internal governance (multi-signature, segregation of duties, professionalized custody).
- Loss of private keys or use of unsecured platforms could qualify as gross negligence, opening the door to claims from partners or creditors.
Liability of directors in case of losses
The Capital Companies Act already provides for the liability of directors for fraud or gross negligence.
With MiCA , that measuring stick is reinforced:
- If the company invests in crypto assets through a unauthorized supplier in the EU, the administrator may be considered negligent.
- Failure to properly document the investment in white papers or internal reports violates the duty of transparency required by MiCA.
- In insolvencies, opaque management of digital assets can lead to guilty rating of the contest and personal property liability.
Bankruptcy scenario and seizure of wallets
The Regulation harmonizes the services of exchange, custody and transfer of crypto assets , making it easier for judges to issue precautionary measures such as the seizure of wallets held in custody at regulated exchanges.
In contrast, non-custodial wallets continue to pose a challenge in terms of proof and enforcement: if the keys are not revealed, the asset is virtually unseizable.
Practical recommendations under MiCA
- Verify suppliers: trade only with custodians and exchanges authorized in the EU.
- Protocol internal custody: establish access and security rules approved by the council.
- Incorporate statutory clausesthat regulate the management of digital assets of society.
- Audit periodically crypto balances and their valuation, with traceable reports and a clear cut-off date.
- Provide recovery and continuity plans, following the spirit of MiCA in terms of governance and risk management.
A new standard for corporate due diligence
The implementation of MiCA does not just mean more regulation , but a paradigm shift: crypto assets will now be subject to common rules of transparency, solvency and governance.
Consequently, administrators who decide to incorporate crypto assets into corporate finance will no longer be able to claim ignorance or improvise custody policies. Their actions will be assessed based on an enhanced due diligence standard , aligned with the European framework.
The message is clear: the adoption of digital assets can be a competitive advantage, but only if managed with legal rigor, transparency, and security protocols in line with new regulations.
RRYP Global.