More and more commercial companies incorporate cryptoassets in your treasury, whether as an investment, means of payment or diversification.
The issue is no longer only technological, but also LegalWhat liability do administrators assume if the company's digital funds are lost, blocked, or mishandled?
The recent MiCA Regulation (EU) 2023/1114, to be applied gradually from June 2024, establishes for the first time a harmonized framework in the European Union for the issuance, offering, and custody of cryptoassets. Although transitional periods are still in progress, their impact on business and corporate management is undeniable.
From intangible asset to regulated asset
Until now, cryptocurrencies were treated as accounting non-financial intangible assets, which generated legal uncertainty and discrepancies in its assessment.
With MiCA, issuers and service providers cripto are subject to transparency, authorization and governance requirements which provide greater solidity to its legal consideration.
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
La Capital Companies Act It already provides for the liability of administrators for fraud or gross negligence.
With Mica, that yardstick 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 cryptoasset exchange, custody, and transfer services, which makes it easier for judges to issue precautionary measures such as seizure of wallets held on regulated exchanges.
In contrast, non-custodial wallets They continue to pose a challenge of proof and execution: if the keys are not revealed, the asset is practically 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 entry into MiCA application does not only mean more regulation, but rather a paradigm shift: cryptoassets are now subject to common standards of transparency, solvency, and governance.
Consequently, managers who decide to incorporate cryptoassets into corporate finance will no longer be able to claim ignorance or improvise custody policies. Their performance will be assessed based on a 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.
