5 key takeaways
- A growing number of employee benefit schemes in Poland are built around tokens, with issuers describing them as “utility tokens” that fall outside MiCA, are not virtual currencies, and allow employers to legally optimise social security contributions — but the label alone does not determine the legal classification
- Under MiCA, whether a token genuinely qualifies as a utility token depends on its actual features, not on what its issuer calls it — a token that can be exchanged for virtual currencies or traditional money, is tradeable, and is listed on trading platforms starts to look like something other than a pure utility token
- If a token is transferable and has an exchange function against money or other crypto-assets, it may in fact be an asset-referenced token (ART), an e-money token (EMT), or another construction entirely — each of which triggers its own licensing, capital and supervisory requirements under MiCA
- Common gap: token-based employee benefit models are frequently analysed only from a social security (ZUS) perspective, with no parallel analysis under MiCA, payment services regulation, AML rules or financial instruments law — a ZUS-only analysis is not a substitute for a financial market regulation analysis
- Regulatory risk in these models does not necessarily stop at the token issuer — if a supervisory authority found that crypto-assets were being offered, or another regulated activity carried out, without the required authorisation, employers actively distributing the scheme to their staff could also face exposure, not only the platform operator
I recently had the opportunity to review one of these token-based “employee benefit” models from a financial market regulation angle. What I found left me with serious regulatory concerns about how these schemes are commonly structured and marketed – concerns worth setting out for any employer, HR team or token issuer considering a similar model.
Utility Token MiCA Poland: What the Label Actually Requires
Under MiCA, a utility token is defined narrowly — broadly speaking, a crypto-asset intended to provide access to a good or service supplied by its issuer. The classification depends on the token’s actual function, not on the terminology an issuer chooses to use in its marketing or FAQ.
Common gap: issuers invoke the MiCA utility token definition in their legal documentation while their own FAQ, aimed at end users, describes features that sit uneasily with that definition – most commonly, the ability to exchange the token for virtual currencies or traditional money, active trading on trading platforms, and general tradeability. A token with these features is doing considerably more than “providing access to a good or service supplied by its issuer.”
| What the issuer calls it | What the token’s actual features suggest |
|---|---|
| “Utility token, outside MiCA’s scope” | Exchangeable for virtual currencies or fiat money – a feature associated with ART/EMT, not pure utility tokens |
| “Not a virtual currency” | Traded on trading platforms – a feature that itself invites scrutiny regardless of the label used |
| “Legally optimises ZUS contributions” | Says nothing about the token’s classification under MiCA, payment services law, AML rules or financial instruments regulation |
When a “Utility Token” Starts Looking Like an ART or EMT
If a token is transferable and carries an exchange function against money or other crypto-assets, the relevant question is no longer “is this a utility token” but “is this actually an asset-referenced token, an e-money token, or another construction requiring a considerably broader regulatory analysis.”
That distinction is not academic. Asset-referenced and e-money tokens under MiCA trigger:
- Authorisation and licensing obligations before the token can be lawfully issued or offered
- Capital and own-funds requirements for the issuer
- Ongoing obligations to the supervisory authority, including reporting and governance requirements
- Broader MiCA compliance obligations that a pure utility token issuer would not face
Financial Instrument Risk: When “Symbolic Price” Meets “Real Tradeable Value”
A recurring pattern in the model I reviewed: an employee “purchases” the token for a symbolic amount, while its declared market value is several thousand PLN, and the token can subsequently be traded. Common gap: analysing this structure purely as a utility token question, when the combination of a large value gap between purchase price and declared market value, plus onward tradeability, is exactly the kind of feature that raises questions under Polish and EU financial instruments regulation – a question that a utility-token-only analysis simply does not address.
Who Actually Carries the Regulatory Risk?
Common gap: assuming that if a supervisory authority concluded that unauthorised crypto-asset offering, or another regulated activity, was taking place, the exposure would sit solely with the token issuer or platform operator. In practice, the question that matters is whether employers actively distributing the scheme to their staff could also face exposure — as active participants in distributing what may turn out to be a regulated offering, not merely a neutral HR benefit. Given the current regulatory climate around crypto-assets in Poland and the EU, this is not a risk worth dismissing.
Frequently Asked Questions
Is every token-based employee benefit scheme in Poland illegal?
No – the point is not that these models are inherently unlawful, but that relying solely on a social security (ZUS) analysis while ignoring MiCA, payment services regulation, AML rules and financial instruments law is a significant and avoidable regulatory risk.
Can an issuer simply relabel a token as a “utility token” to avoid MiCA obligations?
No. MiCA classification depends on the token’s actual features and function – exchangeability for money or other crypto-assets, tradeability on trading platforms, and similar characteristics — not on the label used in marketing materials or legal documentation.
What should an employer do before adopting a token-based benefit scheme?
Commission a financial market regulation analysis (MiCA, payment services, AML, financial instruments) alongside the employment and social security analysis, rather than relying on the token issuer’s own characterisation of the token.
Does the size of the “symbolic” purchase price matter for financial instrument classification?
It can be a relevant factor – a significant gap between a nominal purchase price and a materially higher declared market value, combined with onward tradeability, is the kind of feature that warrants a specific financial instruments analysis rather than being assumed away.
What to Check Before Rolling Out a Token-Based Benefit Scheme
- Ask for the token’s actual technical features (transferability, exchangeability, trading venue access) — not just the issuer’s chosen label
- Commission a MiCA classification analysis independent of the issuer’s own characterisation
- Check whether the token’s structure raises financial instrument classification questions, particularly where purchase price and declared market value diverge significantly
- Assess employer-level exposure separately from issuer-level exposure before rolling the scheme out to staff
If you’re an employer, HR team or token issuer evaluating a token-based benefit scheme in Poland, get in touch for a financial market regulation review. For more, see What Happens to Polish VASPs After MiCA? and What Does KNF Actually Look at in a CASP Application?.
Katarzyna Szczudlik is a Partner at Schoenherr in Warsaw and a crypto lawyer in Poland, ranked by Chambers & Partners and Legal 500. She advises businesses on MiCA classification, crypto-asset regulation and financial market compliance in Poland and the EU. Get in touch.
