P2P crypto trading under MiCA: when trading your own capital becomes a service

People who trade on P2P boards usually ask the same question: if I am trading my own money, who exactly am I providing a service to? The answer is uncomfortable, because MiCA wrote the use of proprietary capital into the definition of one of the services that require authorisation. What decides the question is something else entirely, namely whether contracts are concluded with clients and whether the activity is carried on professionally. This note reflects the position as at 8 September 2026.

Posting offers is not operating a trading platform

The first worry I hear from traders is that they might be running an exchange of their own.

Under Article 3(1)(18) MiCA, operating a trading platform means managing a multilateral system that brings together multiple third-party buying and selling interests in accordance with its own rules. That is what the venue does when it hosts the board, verifies users and resolves disputes between them. A user posting an advertisement on that board manages nothing, and remains one of the interests the system brings together.

Posting offers is therefore not operating a trading platform. That does not settle the matter, because Article 3(1)(16) MiCA lists ten separate crypto-asset services and each of them requires authorisation. Operating a platform is one entry on that list. How the authorisation procedure itself works is something I describe on the page about CASP authorisation under MiCA.

The question therefore moves to a different service in the same catalogue.

Proprietary capital is part of the definition, not an exception to it

The service in question is exchange of crypto-assets for funds. Article 3(1)(19) MiCA defines it as the conclusion of purchase or sale contracts concerning crypto-assets with clients for funds by using proprietary capital.

The closing words of that definition tend to surprise people. The legislator used them to describe someone who stands on the other side of a transaction with their own funds, rather than intermediating in someone else’s. Trading with your own capital is therefore part of the description of the service, and on its own it excludes nothing.

The argument that trading your own money cannot amount to providing a service to anyone rests on a misreading. The underlying fact is true, but the conclusion does not follow from it. The same construction appears in Article 3(1)(20) of MiCA, which covers exchange of crypto-assets for other crypto-assets.

Everything turns on two words in that definition: “with clients”. The task is therefore to establish when the counterparty to a transaction becomes a client.

The professional basis test

This is where the real difficulty starts, because MiCA defines each of these terms by reference to the other. Under Article 3(1)(39) a client is a person to whom a crypto-asset service provider provides crypto-asset services. Under Article 3(1)(15) a crypto-asset service provider is a legal person or other undertaking whose occupation or business is the provision of such services to clients on a professional basis.

Read together, the two definitions refer back to each other and neither of them explains anything on its own. What does the work is the one element of Article 3(1)(15) that points outside the pair: the requirement that the activity be carried on as an occupation or business, on a professional basis.

The consequence matters for anyone trying to assess their own position. Whether your counterparties are clients cannot be answered in the abstract. It depends on whether the activity is carried on professionally, and that is a question of fact rather than one of definition.

The European Commission’s position

The question whether dealing on own account requires authorisation was submitted to ESMA on 30 September 2024 and answered by the European Commission on 6 June 2025 (ESMA_QA_2293).

The Commission took as its starting point the definition of dealing on own account in Article 4(6) MiFID, and accepted that such dealing generally involves no client relationship, because the person acts in its own name rather than on behalf of clients. In those cases authorisation is not required. It then added the qualification that matters here. In some cases proprietary trading using proprietary capital consists in the execution of services that do involve a client relationship, and this concerns in particular the exchange services defined in Article 3(19) and Article 3(20) MiCA.

Answers published through the Q&A process are not binding law and do not displace the regulation. They do show how the institutions reason, and this one closes off any defence resting solely on the fact that a trader uses their own funds.

What pushes the assessment either way

Several circumstances point towards an activity carried on professionally. Quoting on both sides of the market, meaning simultaneous buy and sell offers, is one. So are setting the price, the limits and the accepted payment methods unilaterally, addressing offers to an open and indeterminate group of people, trading with some regularity and intending to continue. The speed at which the same working capital is turned over also carries weight.

Circumstances pointing the other way include isolated transactions, long gaps between them, the absence of any dedicated infrastructure, prices set by hand without automation, and no promotion of offers beyond the venue itself.

None of this works as a scoring exercise. What matters is not which column holds more entries, because a single heavy factor can outweigh several light ones.

The heaviest factor, in my assessment, is the source of the profit. Someone who earns on the difference between their buying and selling price is supplying liquidity to others and performing a function towards them. Someone disposing of their own property is waiting for that property to gain value. On the screen the two look almost identical, and their legal assessment can differ.

No structure available to an individual

A common reaction at this point is to register a business and put the activity on a formal footing. That route does not solve the problem, for two independent reasons.

The first follows from Article 59(3) MiCA. Undertakings that are not legal persons may provide crypto-asset services only where their legal form ensures a level of protection for third parties’ interests equivalent to that afforded by legal persons, and where they are subject to equivalent prudential supervision. A sole trader registration, in Poland and elsewhere, satisfies neither condition, because it involves no separation of assets and attracts no prudential regime.

The second reason is more direct. ESMA answered the question expressly on 12 December 2024 (ESMA_QA_2342), stating that natural persons and trusts or trustees cannot be considered “other undertakings” for the purpose of authorisation as a CASP.

An individual therefore cannot hold the authorisation at all, whatever business registration they obtain. Registering one does nothing to cure the position, and it strengthens rather than weakens the argument that the activity is carried on as an occupation or business.

The rules are uniform, the enforcement machinery is not

MiCA is a regulation, so the classification questions discussed above read the same in Dublin, Madrid and Warsaw. The authority that grants authorisations, the procedure it follows and the machinery available to enforce the prohibition are national, and they are not at the same stage everywhere.

ESMA publishes the list of competent authorities notified under Article 93 MiCA. In its version of 17 February 2026, most Member States appear with a designated authority, among them Germany, where BaFin covers the whole regulation, and Ireland, where the Central Bank of Ireland does. A smaller group is marked as not having formally designated its authorities yet. Poland sits in that group: the list names the Polish Financial Supervision Authority, but without formal designation.

Two cautions follow. A functioning authority tells you who grants authorisations and who can act on a breach. It tells you nothing about how that authority views P2P trading by individuals, because no supervisor in the Union has published a position on the question. And the absence of enforcement machinery in a given Member State does not make the conduct lawful, because the prohibition in Article 59(1) MiCA applies regardless of whether a state has built the apparatus to enforce it.

My own practice covers EU law and Polish law directly. Where a matter runs through the procedure of another Member State, I act as lead counsel and coordinate with local counsel qualified there, which I describe further on the page about the practice. The transitional arrangements that allowed entities to continue under national regimes ended on 1 July 2026, and I have written separately about winding down a Polish VASP registration.

Risks that may land before any supervisory action

Classification under MiCA is only one layer of the problem. In practice the first difficulties usually arrive from a different direction.

Banks tend to react first. Dozens of incoming transfers a month from unrelated people, landing in a personal account, produce a pattern that monitoring systems pick up without difficulty. Terms and conditions for personal accounts commonly prohibit using them for profit-making activity. The consequences range from a freeze and a request for documents evidencing the source of funds through to termination of the banking relationship.

The venue is the second source of trouble. Exchange terms routinely list unlicensed financial services among prohibited businesses and reserve the right to suspend accounts and freeze funds without notice and without reasons. Recourse against an operator established outside the Union is often illusory.

Payments from third parties carry their own risk. A transfer from someone other than the counterparty to the transaction can draw a trader into the movement of criminal proceeds without any awareness of it.

The last risk builds slowly. The larger the turnover, the harder it becomes to reconstruct a transaction history and evidence the source of funds when a bank or an authority asks.

Three separate questions

Anti-money-laundering obligations rest on their own legal basis, independent of MiCA, and their scope still differs between Member States. They need to be assessed separately for the jurisdiction concerned.

Selling tokens that qualify as e-money tokens raises a distinct question under Article 48 MiCA, concerning offers of such tokens to the public. I address that area in the context of token offerings under MiCA.

Tax treatment and the effect of tax residence form an entirely separate subject, which this note does not cover.

What to do with this

Before taking advice, it is worth establishing four things about your own model. Where the profit comes from, whether from the spread or from movements in the price of the assets held. Whether offers are posted on both sides. Who sets the terms of each transaction. How quickly the same capital is turned over.

The answers to those questions say more about the classification than the size of the turnover does. The statement that a trader uses their own money is where that conversation starts rather than where it ends.