# MiCAR Redemption Plan and Liquidator under § 28 KMAG

> Redemption rights for ART and EMT, the liquidator under § 28 KMAG, and EU law limits on national rules.

Source: https://www.mtrlegal.com/en/micar-redemption-plan-liquidator-section-28-kmag/ · Language: en · Updated: 2026-10-21

---

## Overview of the MiCAR redemption plan and § 28 KMAG

The Regulation on Markets in Crypto-Assets (MiCAR) has created an EU-law protective framework for certain crypto-assets. Of particular importance are asset-referenced tokens, known as Asset-Referenced Tokens (ART), and e-money tokens (EMT). For ART, Art. 39(1) MiCAR provides for a right of redemption. For EMT, a right to reimbursement arises in particular from Art. 49(4) MiCAR.

The temporary administrator under Art. 47(2) subpara. 2 MiCAR assumes a central function within the redemption plan. The German Kryptomärkteaufsichtsgesetz (KMAG, German Crypto Markets Supervision Act) refers to this person in [§ 28 KMAG](https://www.gesetze-im-internet.de/kmag/BJNR1B60B0024.html) as the liquidator. In the course of implementing the redemption plan, the power to administer and dispose of the reserve of assets may pass to this person. Their position therefore directly affects the enforcement of claims by token holders as well as investor and consumer protection.

The KMAG was promulgated as Article 1 of the [Finanzmarktdigitalisierungsgesetz (Financial Market Digitalisation Act)](https://dserver.bundestag.de/btd/20/102/2010280.pdf) in the Bundesgesetzblatt (Federal Law Gazette) on 27 December 2024. It was last amended by Article 21 of the BRUBEG of 25 March 2026 with effect from 31 March 2026. According to the available information, this amendment concerned §§ 8, 20, 25, 26 and 47 KMAG; § 28 KMAG remained unchanged.

## EU-law background to the redemption plan

### Reserve of assets for ART

Issuers of ART must establish and continuously maintain a reserve of assets pursuant to Art. 36(1) subpara. 1 MiCAR. This reserve serves to secure the value-stability promise of such tokens. Holders of ART have a right of redemption against the issuer at any time under Art. 39(1) sentence 1 alternative 1 MiCAR.

In addition, Art. 39(1) sentence 1 alternative 2 MiCAR provides for a secondary right of redemption in relation to the reserve of assets. This right does not arise merely because an issuer breaches obligations to prepare plans. Rather, the decisive factor is that the competent authority orders the implementation of the redemption plan under Art. 47 MiCAR.

The redemption plan forms part of a special regime established under EU law that contains recovery and resolution mechanisms for certain crypto-assets. It becomes relevant where the competent authority determines that the issuer is unable, or is likely to be unable, to meet its obligations. This may also be the case in the event of insolvency, possible liquidation, or withdrawal of the issuer’s authorisation.

### EMT and functional equivalent to the reserve

For issuers of EMT, the rules on the redemption plan apply mutatis mutandis via Art. 55 subpara. 1 MiCAR. As a rule, they must likewise draw up and maintain a redemption plan pursuant to Art. 47(1) MiCAR. An exception applies to credit institutions issuing EMT with regard to the designation of a temporary administrator.

In the case of EMT, it must be borne in mind that their issuers do not in every case have to establish a reserve of assets within the meaning of Art. 36 MiCAR. Such a requirement exists in particular for significant EMT issued by e-money institutions under Art. 58(1)(a) MiCAR or for non-significant EMT on the basis of a special order by the authority under Art. 58(2) MiCAR.

For simple EMT issued by e-money institutions, however, there is a functional equivalent to the reserve of assets. This lies in the safeguarding of client funds under Art. 48(3) MiCAR in conjunction with Art. 7 of the E-Money Directive and the respective national implementing law. In this context, the temporary administrator may be responsible for realising the funds received.

### EBA Guidelines and temporal classification

MiCAR entered into force on 29 June 2023. The requirements for ART and EMT have applied since 30 June 2024. The MiCAR transitional period ended across the EU on 1 July 2026; Germany had shortened it to 31 December 2025, meaning that since then only MiCAR-licensed providers have been permitted.

The European Banking Authority published final guidelines on 9 October 2024 on the content of redemption plans under Art. 47 and Art. 55 MiCAR. These guidelines also shape the substance of the national framework of § 28 KMAG. Notification and submission obligations under the KMAG were further specified at sub-statutory level by the Kryptomärkteanzeigenverordnung (Crypto Markets Notification Ordinance).

## § 28 KMAG as a German implementing provision

### Function of the provision

§ 28 KMAG is intended to integrate the EU-law requirements concerning the reserve of assets and the redemption plan into the German legal system. The provision concerns in particular the temporary administrator under Art. 47(2) subpara. 2 MiCAR, who is referred to in the KMAG as the liquidator.

The provision serves to protect the holders of ART and EMT. At the same time, § 28 KMAG is regarded in legal literature as requiring revision. The background is that certain regulatory components raise concerns under EU law, particularly with regard to the prohibition on duplicating rules and the legislative competence of the German legislator.

### EU-law limits on national rules

Under the EU-law prohibition on duplicating rules, national provisions may, as a rule, not regulate or repeat in substance an area that is already governed by a directly applicable EU regulation. This is intended to prevent addressees from being misled as to the EU-law origin of the rules. At the same time, it is intended to preserve the interpretative monopoly of the Court of Justice of the European Union.

EU-law concerns are discussed in particular with regard to the following parts of § 28 KMAG:

- § 28(1) KMAG,
- § 28(2) KMAG,
- § 28(3) sentence 1 KMAG,
- § 28(5) sentence 3 KMAG,
- § 28(6) KMAG,
- § 28(8) sentence 1 KMAG,
- where applicable, § 28(9) KMAG.

Where a national provision breaches the prohibition on duplicating rules or was enacted without legislative competence, this may result in incompatibility with EU law and thus in the inapplicability of the national rule.

### Personal and material scope of application

§ 28(1) to (8) KMAG initially covers institutions within the meaning of the KMAG. This refers to undertakings that publicly offer ART pursuant to Art. 16 or Art. 17 MiCAR or apply for their admission to trading. Within the provision, however, the terminology is not used consistently throughout; § 28(3) KMAG, for example, refers to issuers.

§ 28(9) KMAG extends the scope of application to issuers of EMT with authorisation under § 11 ZAG (Zahlungsdiensteaufsichtsgesetz, German Payment Services Supervision Act). Although § 28(9) KMAG does not expressly refer to the definition in § 2(4) no. 2 KMAG, that definition must, on a proper application, be taken into account in the corresponding application of § 28(1) KMAG.

In material terms, § 28 KMAG concerns exclusively ART and EMT. Other crypto-assets within the meaning of Title II MiCAR are not covered. For them, neither the right of redemption under Art. 39 MiCAR nor the right to reimbursement under Art. 49 MiCAR, nor any corresponding special regime, exists.

## The liquidator under § 28 KMAG

### Distinction from other resolution and liquidation terms

The liquidator under § 28 KMAG must be distinguished from other terms used in the same statute. § 9(1) sentence 2 no. 2 KMAG also uses the term liquidator, but does not mean the same function. The overlap in terminology is therefore misleading.

The liquidator under § 28 KMAG must likewise be distinguished from liquidation under § 13 KMAG. That provision concerns liquidation shaped by company law. By contrast, § 28 KMAG concerns the implementation of the redemption plan and the administration or realisation of a special estate.

### Legal status as a party by virtue of office

The doctrinal classification of the liquidator has not yet been conclusively clarified. This classification issue was already pointed out during the legislative procedure for the Finanzmarktdigitalisierungsgesetz. However, no further specification was provided in the explanatory memorandum to the recommendation for a resolution.

The liquidator shows parallels to the insolvency administrator because, in the case of an insolvency administrator too, the power to administer and dispose of a certain estate passes to that administrator under § 80(1) InsO (Insolvenzordnung, German Insolvency Code). At the same time, there are similarities to the Sachwalter (custodian) under the Verbraucherrechtedurchsetzungsgesetz (Consumer Rights Enforcement Act), who exercises powers of administration and disposal over an implementation fund as a special estate. However, the liquidator’s legal position goes further than that of a Sachwalter under the InsO or a restructuring officer under the StaRUG (Unternehmensstabilisierungs- und -restrukturierungsgesetz, German Act on the Stabilisation and Restructuring Framework for Businesses), since the latter primarily perform supervisory tasks.

The liquidator is to be classified as a party by virtue of office. They do not acquire their powers by their own legal authority, but by appointment. In addition, they exercise powers of administration and disposal over a special estate by virtue of office.

### Relationship to the issuer and token holders

If holders of ART assert their right of redemption in relation to the reserve of assets, or holders of EMT assert their right to reimbursement from the functional equivalent, the claim must be asserted against the liquidator. At that time, the issuer no longer has the power to administer and dispose of the special estate concerned.

Under civil law, however, the issuer remains the owner of the assets and the party against whom the secondary redemption claim is directed. This means that, procedurally, the liquidator may have passive standing as a party by virtue of office. Their duties relate not only to the interests of the holders of ART or EMT, but also to the interests of the issuer and, where applicable, to the interests of further creditors.

This multilateral link to various interests results from the fact that, under civil law, the reserve assets remain allocated to the issuer, while at the same time serving, in liability terms, the holders of ART or EMT. Under certain conditions, other creditors may also claim a remainder or surplus of the reserve assets.

## Designation and appointment of the liquidator

### Designation in the redemption plan

The designation of the temporary administrator in the redemption plan is, as a starting point, governed by Art. 47(2) subpara. 2 MiCAR. § 28(3) sentence 1 KMAG is problematic in this respect as a national repetition of EU-law requirements and, according to the view described, remains unapplied. The relevant point is therefore the autonomous interpretation of MiCAR under EU law.

The designation is intended to prevent a suitable person from first having to be sought in a crisis situation. It serves to ensure that consideration is given as a precaution to liquidation already when the redemption plan is drawn up. However, it does not necessarily follow from this that a specific person must already be named in the redemption plan.

A redemption plan is often prepared long before the event in which it is actually applied. It would therefore be unrealistic in practice to predict with certainty at that point which specific person will later be available. It is therefore appropriate to understand the designation obligation as requiring the issuer to describe a requirements profile for the specific redemption plan and, where applicable, to name possible persons or groups of persons.

### Requirements for liquidators and deputies

§ 28(3) KMAG requires liquidators and deputies to possess the skills and knowledge necessary to administer the reserve assets. Anyone who has audited the reserve assets in the last three years is excluded as a liquidator under § 28(3) KMAG.

MiCAR and the KMAG do not conclusively specify the required skills and knowledge. As a rule, a person who is professionally engaged in administering third-party estates will be able to meet the necessary requirements. If the reserve assets also consist of crypto-assets, knowledge of the legal and economic particularities of crypto-assets may also be required.

### Appointment by the issuer

The designation in the redemption plan must be distinguished from the actual appointment of the liquidator. According to the official wording of § 28(4) KMAG, the issuer appoints the liquidator named in the redemption plan without undue delay as soon as BaFin (Bundesanstalt für Finanzdienstleistungsaufsicht, German Federal Financial Supervisory Authority) orders implementation of the redemption plan under Art. 47 MiCAR. The appointment is therefore not made by BaFin.

This allocation of competence is striking because courts or authorities often play a central role in appointing comparable functions. During the legislative procedure, the co-author of the underlying article, acting as an expert, had proposed wording § 28(4) KMAG-E (draft KMAG) such that BaFin itself would appoint one of the persons named in the redemption plan as liquidator. The legislator did not adopt this approach.

Under current law, the issuer must make the appointment without undue delay. § 28 KMAG does not contain an express general substitute competence of a court or authority for the initial appointment if the issuer remains inactive. In such a case, the office could initially remain vacant.

### Role of BaFin and court appointment

Under § 28(4) KMAG, BaFin may require that a liquidator other than the one named in the redemption plan be appointed. If the issuer does not comply with such a request without undue delay, a liquidator must be appointed by the court upon application by BaFin.

According to the official wording, the court must appoint a liquidator upon application by BaFin if the persons otherwise called upon to conduct the liquidation are unreliable or professionally unsuitable, or do not provide assurance of proper liquidation. This judicial substitute competence therefore expressly concerns specific cases of insufficient personal suitability or lack of assurance of proper liquidation.

For systematic reasons, it is also argued that a corresponding judicial substitute competence may also be considered where the issuer already fails to fulfil its original appointment obligation. The justification given is that a subsidiary judicial competence must exist all the more where not only a request for change by BaFin remains unfulfilled, but the appointment fails to take place altogether.

After the appointment, the issuer is obliged to notify BaFin of the appointment without undue delay. Changes concerning the liquidator to be appointed must also be communicated. BaFin publishes the implementation of the redemption plan and the appointment of the liquidator, including name and address, in the Bundesanzeiger (Federal Gazette). This serves transparency in legal transactions, since it must be apparent who is entitled to dispose of the reserve assets.

## Tasks of the liquidator when implementing the redemption plan

### Transfer of the power to administer and dispose

Upon publication of the appointment of the liquidator, the right to administer the reserve assets and to dispose of the items forming part of them passes to the liquidator pursuant to § 28(5) sentence 1 KMAG. The liquidator thereby assumes a central function in the practical implementation of the redemption plan.

If the redemption plan is implemented due to the issuer’s insolvency, the Insolvenzgericht (insolvency court) appoints an Insolvenzverwalter (insolvency administrator) for the insolvency proceedings with the power to administer and dispose of the insolvency estate. However, under the more specific provision of § 28(4) sentence 1 KMAG, the issuer remains responsible for appointing the liquidator. The right of appointment therefore does not pass to the insolvency administrator.

Identity of persons between insolvency administrator and liquidator will generally be ruled out. The background to this is potential conflicts of interest. Remaining reserve assets may, under certain conditions, fall into the insolvency estate. The insolvency administrator would therefore have an interest in the estate being as large as possible, whereas the liquidator is focused on satisfying the redemption claims.

### Realisation of the reserve assets

The liquidator’s task is to realise the reserve of assets. § 28(5) sentence 3 KMAG is connected in this respect with Art. 47(2) subpara. 2 MiCAR. According to that provision, the redemption plan must provide for procedures and systems so that proceeds from the sale of the remaining reserve assets are paid out to the holders of the ART in due time.

A payment may be made only once the respective holder has proven their entitlement to the claim. This protects the other holders of ART as well as the issuer, which remains the civil-law owner of the reserve assets. Verification is also important for the liquidator themselves, since personal liability may arise.

Proof of entitlement to the claim may be made more difficult by the technical structure of distributed ledgers. Pseudonymisation and transfers of ART may mean that entitlement is not readily apparent. Where custody is provided by a crypto-asset service provider, proof may, for example, be considered by means of a statement of the crypto-assets held in custody under Art. 75(5) subpara. 1 MiCAR. Proof remains more difficult in the case of self-custody, even if this scenario is likely to be rather rare in practice.

## Collective enforcement of claims

### Redress action against the liquidator as a party by virtue of office

Collective enforcement of claims by an entity entitled to bring an action within the meaning of § 2(1) VDuG (Verbraucherrechtedurchsetzungsgesetz, German Consumer Rights Enforcement Act) in favour of holders of ART or EMT may be considered, provided that they are also consumers. This concerns in particular cases in which implementation of the redemption plan is omitted or is insufficient.

In this context, it must be clarified whether the liquidator themselves must be a trader within the meaning of § 1(1) VDuG. The party against whom the substantive-law claim is directed remains the respective issuer. However, in relation to the reserve of assets or the functional equivalent, the liquidator alone has the power to administer and dispose.

With the transfer of the power to administer and dispose, the authority to conduct litigation in relation to the relevant special estate also passes to the liquidator. As a party by virtue of office, the liquidator therefore assumes the position of the issuer. Whether the liquidator is, independently of this office, themselves a trader within the meaning of the VDuG can remain open for such a redress action.

The situation may be different where a redress action is considered on the basis of personal liability of the liquidator. In that case, it would have to be clarified whether the liquidator themselves satisfies the trader characteristic.

## Remuneration of the liquidator

### No rule in MiCAR

MiCAR contains no independent remuneration rule for the temporary administrator. This is significant for the practical operability of the redemption plan. The liquidator assumes tasks involving liability risks, in particular in the administration and realisation of the reserve assets. Without secure remuneration, it may be difficult to find suitable persons willing to assume the office.

The German legislator created § 28(6) KMAG for this purpose. Under that provision, the liquidator has a claim to reimbursement of reasonable expenses and to remuneration for their activities. The claim is directed against the issuer.

### EU-law concerns regarding priority from the reserve assets

§ 28(6) sentence 2 KMAG provides that expenses and remuneration are to be satisfied as a priority from the reserve assets. This rule raises concerns under EU law. Art. 36(2) MiCAR provides that creditors of the issuer have no access to the reserve of assets. The reserve of assets is allocated to the holders of the ART, who have an exclusive right of access.

Against this background, it is argued that the German legislator had neither competence to create a right of access by the liquidator to the reserve assets nor competence to provide for priority satisfaction from this estate. According to this view, the national remuneration rule would have to remain unapplied in this respect.

In addition, § 28(6) KMAG contains no more detailed structure. In particular, it remains unclear:

- who determines the reasonableness of expenses and remuneration,
- who carries out a review,
- which remuneration model is to be applied,
- which expenses are reimbursable.

Despite the statutory rule, the remuneration issue therefore remains not finally and satisfactorily resolved.

### Possible legislative design

The remuneration rule for the voting rights trustee in § 25(9) KMAG is cited as possible legislative guidance. This provision is structured in greater detail. Among other things, it regulates the judicial determination of expenses and remuneration, liability for the costs, and an advance by the Bundesanstalt.

If the liquidator’s remuneration were regulated according to a comparable model, the EU-law problem of priority access to the reserve assets could be avoided. In addition, judicial determination would make the reasonableness of the remuneration reviewable. An advance by BaFin could reduce the risk that the office is not assumed due to unsecured remuneration.

For insolvency cases, it is also being considered to grant the liquidator by statute an estate claim within the meaning of § 55 InsO. This would not affect the reserve assets and would therefore be less problematic under EU law. However, a residual risk would remain in the event of insufficiency of the estate. In addition, such a solution would be relevant only in insolvency cases and would therefore not be comprehensive.

## Liability of the liquidator

Under § 28(7) sentence 1 KMAG, the liquidator is liable only for intent and gross negligence. In the event of grossly negligent conduct, the obligation to pay damages is limited to one million euros. Excluding or limiting the obligation to pay damages by contract is not permitted.

It is not expressly regulated to whom the liquidator is liable. However, it follows from the structure of § 28 KMAG that liability relationships may be considered both vis-à-vis the issuer and vis-à-vis the holders of ART or EMT. The issuer remains the civil-law owner of the reserve assets, while the token holders have an economic interest in the realisation of the special estate.

This dual reference highlights the special position of the liquidator. They are not merely the representative of one side, but hold an office with effect for several groups of interested parties involved.

## Significance for investor and consumer protection

The EU-law protective framework for holders of ART is comparatively extensive due to the right of redemption under Art. 39 MiCAR and the reserve of assets under Art. 36 MiCAR. For holders of EMT, a similar protective concept arises insofar as the safeguarding of client funds under the E-Money Directive operates as a functional equivalent to the reserve of assets.

At the same time, the structure of § 28 KMAG reveals open questions in the practical implementation of the redemption plan. Particularly significant are the legal status of the liquidator, their appointment, enforcement of claims against them as a party by virtue of office, their remuneration, and their liability. Remuneration in particular remains a central point, because the actual operability of the redemption plan may depend on whether a suitable person assumes the office.

For companies, issuers, investors and high-net-worth private individuals, these questions concern not only the regulation of crypto-assets, but also capital market structures, liability risks and the enforcement of investor rights. MTR Legal Rechtsanwälte advises clients on legal issues at the intersection of MiCAR, the KMAG and capital markets law. Further information can be found at [Legal advice in capital markets law](https://www.mtrlegal.com/rechtsberatung/kapitalmarktrecht/).