Article 2
Conflicts of interest potentially detrimental to the crypto-asset service provider
1. The policies and procedures referred to in Article 72(1) of Regulation (EU) 2023/1114 to identify, prevent, manage and disclose conflicts of interests potentially detrimental to the crypto-asset service provider 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, at least, situations or relationships where a connected person:
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(a) |
has an economic interest in a person, body or entity with interests conflicting with those of the crypto-asset service provider; |
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(b) |
has a present relationship with a person, body or entity that has interests conflicting with those of the crypto-asset service provider that could be of a personal, professional or political nature or had that relationship within the previous 3 years, starting from when the assessment is made; |
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(c) |
carries out tasks or activities, or is entrusted with responsibilities, conflicting with those of the crypto-asset service provider or is hierarchically supervised by a person in charge of functions or tasks conflicting with those of the crypto-asset service provider. |
2. For the purposes of identifying the persons, bodies or entities with conflicting interests to those of crypto-asset service providers, crypto-asset service providers shall take into account, at least, whether that person, body or entity:
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(a) |
is likely to make a financial gain, or avoid a financial loss, at the expense of the crypto-asset service provider; |
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(b) |
has an interest in the outcome of a crypto-asset service provided or an activity carried out by the crypto-asset service provider, which is distinct from the crypto-asset service provider’s interest in that outcome; |
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(c) |
carries out the same business as the crypto-asset service provider or is a client, consultant, adviser, delegatee, outsourcee, service provider or other supplier (including subcontractors) of the crypto-asset service provider and there are demonstrable grounds that there may be a conflict of interests with the crypto-asset service provider. |
3. For the purposes of paragraph 1, point (a), crypto-asset service providers shall take into account situations where the connected person that is a member of the management body, employee of the crypto-asset service provider or a shareholder or member that has a qualifying holding in the crypto-asset service provider:
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(a) |
holds shares, tokens (including governance tokens), other ownership rights or membership in that person, body or entity; |
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(b) |
holds debt instruments of or has other debt arrangements with that person, body or entity; |
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(c) |
has any form of contractual arrangements related to the activities regulated under Regulation (EU) 2023/1114 with that person, body or entity. |