ESMA targets MEV as potential market abuse in MiCA proposal

The European Securities and Markets Authority (ESMA) is examining Maximum Extractable Value (MEV) as a potential form of illegal market abuse under its proposed technical standards for the Markets in Crypto-Assets (MiCA) regulation.

MEV refers to the additional value blockchain validators can gain by manipulating the order of transactions within the blocks they create. This manipulation, often termed “front-running,” allows miners to earn additional profits beyond the standard block rewards and gas fees.

Patrick Hansen, a well-known commentator on crypto regulations, recently brought attention to this issue on Twitter, pointing out its significant implications for the crypto industry.

In a May 27 X post, Hansen quoted the ESMA draft, stating: “…the well-known Maximum Extractable Value (MEV) whereby a miner/validator can take advantage of its ability to arbitrarily reorder transactions to front-run a specific transaction(s) and therefore make a profit” clearly indicates market abuse.

Hansen noted that almost all regulated crypto businesses in the EU, including exchanges and brokers, would be required to detect and report instances of MEV through comprehensive “suspicious transaction or order reports” (STORs). The ESMA STOR template alone spans six pages.

The proposed standards mandate detailed procedures for MEV detection, raising concerns about the feasibility of reporting every instance. Hansen questioned the practicality of these extensive reporting requirements, given the complexity and frequency of MEV occurrences in the crypto market.

Additionally, ESMA’s draft standards suggest a collaborative approach to enforcement, urging cooperation between authorities within and outside the EU. This means that actors involved in MEV could face investigations and enforcement actions not only from EU regulators but also from international authorities.

The consultation package, part of ESMA’s ongoing efforts to refine MiCA’s implementation, includes a broad range of technical standards aimed at enhancing market integrity and protecting investors. The focus on MEV highlights the EU’s commitment to addressing sophisticated forms of market manipulation in the rapidly evolving crypto sector.

Hansen emphasized the importance of stakeholder participation in the consultation process, noting that feedback from those directly involved in MEV and other crypto activities is crucial for developing effective regulatory measures.

The debate around MEV and its implications has sparked diverse opinions among industry experts.

In an X post on the same day, Martin Leinweber, digital asset strategist at MarketVector, said, “I believe the discussion around MEV is multifaceted and extends beyond a simple dichotomy of ‘good’ and ‘bad.'”

“While there are indeed negative aspects, such as manipulative practices, it’s essential to acknowledge the positive role MEV plays in certain contexts. For instance, in DeFi, MEV can facilitate necessary functions like liquidations on lending protocols and enable efficient exchange arbitrage,” Leinweber added.

Leinweber further explained that MEV serves as a crucial revenue stream for both chains and validators due to the competitive nature of fee markets on Layer 1 networks like Ethereum. He emphasized that as transaction fees trend downwards due to scalability improvements and increased competition, MEV becomes vital in sustaining network security and incentivizing validator participation.

Meanwhile, Jonathan Galea, a prominent crypto advocate and CEO of BCAS, a crypto-focused regulatory consultancy, urged caution. He clarified, “ESMA is clear in its document, stating that MEV may be indicative of market abuse, and then making specific reference to front-running. It does not state that it ‘clearly suggests the existence of market abuse.'”

Galea agreed with Hansen that it is impractical to report all instances of MEV, stressing the need to distinguish between various forms of MEV. He noted that front-running may be seen as an indicator of market abuse, suggesting that only certain forms of MEV likely accompanied by malicious intent should be flagged as potential market abuse indicators.

The crypto lawyer also echoed the importance of industry feedback to ESMA, not just from those directly involved in MEV.

ESMA has set a June 25 deadline for stakeholders to submit their feedback on the draft standards.

Given this broad interpretation, though enforcement is still about a month away, experts predict heightened scrutiny for MEV teams within the EU. If MiCA bans MEV practices in Europe, its effect might ripple across the decentralized finance (DeFi) and crypto ecosystem, potentially impacting liquidity.

ESMA’s proactive approach to regulating market abuse in the crypto sphere underscores the EU’s commitment to managing the rapidly evolving digital asset landscape. As the global community watches MiCA’s implementation, other jurisdictions will likely draw insights and adapt their regulatory frameworks accordingly.