The statement
ESMA's statement addresses derivatives often marketed as perpetual futures or perpetual contracts, which give leveraged exposure to an underlying, including crypto-assets. ESMA considers that these products are likely to fall within the scope of the national product intervention measures on contracts for difference, and that the commercial name a firm gives a product is irrelevant to its categorisation under MiFID II.
The test is functional. For these purposes a CFD is a derivative, other than an option, future, swap or forward rate agreement, whose purpose is to give the holder a long or short exposure to fluctuations in the price, level or value of an underlying, and which is settled, or may be settled, in cash. ESMA states that a derivative giving exposure to an underlying value that is not exclusively settled physically would likely fall within the measures.
What the CFD measures require
A firm offering products within scope to retail clients must apply:
- leverage limits by class of underlying, which for crypto-assets is 2:1;
- a margin close-out rule, under which positions are closed when margin falls to 50 per cent of the minimum required;
- negative balance protection, limiting a retail client's losses to the funds in the account;
- a standardised risk warning, including the percentage of retail accounts that lose money;
- a prohibition on monetary and non-monetary benefits that encourage trading.
ESMA also reminded firms of the appropriateness assessment for complex products, the need for a narrowly defined target market with a consistent distribution strategy, and the management of conflicts of interest. It regards mass marketing to inexperienced investors as inconsistent with product governance requirements.
Authorisation
Derivatives on crypto-assets are financial instruments under MiFID II. Offering them requires authorisation as an investment firm, and authorisation as a crypto-asset service provider under MiCA does not extend to them. In the UK, the FCA's rules prohibit the sale, marketing and distribution of cryptoasset derivatives to retail clients.
What firms should do
Firms offering, or planning to offer, perpetual contracts to clients in the EU should assess each product against the CFD definition, apply the measures where the product is in scope, and confirm that their authorisation covers the activity.
How we can help
We prepare applications for investment firms and MTFs, including firms offering crypto derivatives, and for FX and CFD brokers. See investment firms and MTFs and FX and CFD brokers, or speak to us.
Source
European Securities and Markets Authority, ESMA reminds firms of their obligations under CFD product intervention measures amid rising offerings of perpetual futures, 24 February 2026, and the accompanying public statement (ESMA35-243228190-8024). Checked 27 September 2026.