Europe doubles down on ‘same risk, same rules’ approach for crypto derivatives

Europe’s securities watchdog has reaffirmed that crypto derivatives offering leveraged exposure to digital assets will be regulated under the same framework as traditional high-risk financial products. This reinforces the bloc’s long-standing “same risk, same rules” doctrine.

In a public statement, the European Securities and Markets Authority [ESMA] clarified that many crypto derivatives — particularly so-called perpetual contracts — already fall within the scope of existing Contract for Difference [CFD] product-intervention measures, regardless of how they are branded or marketed.

Substance over labels in crypto derivatives

ESMA’s message is that regulatory treatment depends on a product’s economic characteristics, not its name. 

Crypto derivatives that provide leveraged long or short exposure, are cash-settled, or mirror the risk profile of CFDs, will be assessed under the same rules that apply to traditional speculative instruments.

This means that calling a product a “perpetual future” or “perpetual contract” does not exempt it from EU financial regulation if its structure and risk profile align with CFDs.

What the ‘same risk, same rules’ principle means

Under the EU’s regulatory framework, the “same risk, same rules” principle is designed to ensure consistent investor protection across markets. ESMA’s statement reiterates that crypto assets do not receive special treatment simply because they are based on new technology.

Where crypto derivatives are deemed CFDs, national product intervention measures apply. These include leverage caps, standardized risk warnings, margin close-out requirements, negative balance protection, and bans on trading incentives aimed at retail clients.

Implications for crypto exchanges and brokers

The clarification has direct implications for firms offering leveraged crypto products to EU retail investors. Platforms must ensure that their offerings comply with both CFD intervention rules and broader MiFID II investor-protection obligations.

ESMA also highlighted product-governance expectations, noting that highly leveraged crypto derivatives typically have a very narrow target market. 

Firms are expected to conduct appropriateness assessments and avoid mass-market promotion that could expose retail users to disproportionate risk.

Not a new ban, but a regulatory reminder

Importantly, ESMA’s statement does not introduce new restrictions or announce a ban on crypto derivatives. Instead, it serves as a reminder that existing EU rules already apply and that enforcement will follow the substance of a product rather than its presentation.

The regulator’s stance aligns with previous EU policy signals that crypto markets are expected to integrate into the existing financial system under established safeguards, rather than operate in parallel regulatory regimes.

Final Summary

• Europe’s reaffirmation of “same risk, same rules” underscores that crypto derivatives will continue to be regulated under traditional investor-protection frameworks.
• For firms and traders, the message is clear: innovation in product design does not override existing financial rules.