ESMA Says EU Retail Ban Covers Many Prediction Markets, With MiCA Awaiting the Tokenized Ones

Europe’s top securities regulator has clarified that many prediction-market event contracts already fall under the EU’s existing retail ban on binary options – meaning the restriction is live law, not a proposed rule – while contracts issued as blockchain tokens may instead be caught by the bloc’s crypto framework. The statement leaves platforms such as Kalshi and Polymarket a narrow and demanding path to European retail users.

ESMA’s reasoning is that event contracts whose underlying question relates to an asset listed in Section C(4) to (10) of Annex I of MiFID II – the directive’s derivatives categories – count as financial instruments. Where a contract does qualify, ESMA said, it “classify as derivatives and, given the binary outcome, fall within the scope of the existing national product intervention measures on binary options adopted by Member State competent authorities prohibiting their marketing, distribution or sale to retail clients.”

Binary options have been effectively banned for retail investors across the EU since 2018, when ESMA introduced a temporary intervention that member-state regulators subsequently made permanent through their own national measures.

Notably, ESMA now noted that event contracts that are tokenized and do not qualify as financial instruments may instead fall under the EU’s Markets in Crypto-Assets (MiCA) framework. This carries its own authorization and disclosure requirements. Some event contracts could also fall under national gambling law, depending on how a given member state treats them.

For platforms with European ambitions, ESMA has narrowed the options to restructuring products so they fall outside financial-instrument classification, obtaining MiFID II authorization, or accepting that the EU retail market stays closed unless further compliance moves are made.