Compensation from the State Treasury for the Absence of MiCA Implementing Legislation: Does a Crypto-Asset Firm Have a Claim?
Legal analysis · liability for legislative omission · Article 417¹ § 4 of the Polish Civil Code
Abstract
This article asks whether a crypto-asset firm that loses the ability to operate lawfully upon the expiry of the MiCA transitional period may recover its loss from the Polish State Treasury, where Poland has failed to enact the domestic statute designating the competent authority. It argues that a claim can be constructed, and that its center of gravity lies where attention is rarely directed. The doctrinal vehicle is Article 417¹ § 4 of the Polish Civil Code, governing liability for legislative omission, reinforced by the Francovich line of Union law. The decisive obstacle is neither the existence of the right nor the unlawfulness of the omission, but the causal link, set against the State’s anticipated defense that passporting under Article 65 MiCA remained available. The article maps the supporting authorities and, with equal candor, the arguments capable of defeating the claim, concluding that the prospects are real but uncertain, of the order of several tens of percent, and that the value of the exercise lies in being first and well documented while the regulatory vacuum persists.
For part of the Polish crypto-asset market, 1 July 2026 marks a cliff edge. The MiCA Regulation applies directly, yet the domestic statute that would designate the authority issuing CASP licenses still does not exist. An entrepreneur who, at the close of the transitional period, loses the ability to operate lawfully asks the natural question: if the harm was occasioned by the State’s omission, may its repair be sought from the State Treasury? The answer is that a claim can be constructed, but its burden lies where one does not usually look.
I. The Legal Setting: A Regulation That Operates and a Statute That Is Missing
MiCA, that is Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets (OJ L 150, 9.6.2023, p. 40), is a regulation, not a directive. By force of Article 288 TFEU it applies directly in every Member State and requires no implementation in the technical sense. This distinction, seemingly academic, proves decisive for the entire analysis.
Direct applicability does not, however, entail self-sufficiency. MiCA imposes ancillary obligations on the Member State: the designation of a competent authority (Article 93), the provision of a procedure for granting CASP authorizations, and the establishment of sanctions for infringements. In Poland that authority was to be the Polish Financial Supervision Authority (Komisja Nadzoru Finansowego, KNF). Absent a domestic statute, the KNF does not accept license applications, and so no path exists to obtaining a CASP authorization within the country.
The calendar does not negotiate. Under Article 143(3) MiCA, entities that provided crypto-asset services under national law before 30 December 2024 may operate during a transitional period until 1 July 2026, or until an authorization is granted or refused (Article 63), whichever occurs first. After that date, a service rendered without authorization constitutes an infringement of Union law. A Polish entrepreneur with no one from whom to obtain a domestic authorization thus faces a choice: registration in another Member State, or withdrawal from the Union market.
The background is familiar. The crypto-asset markets bill, in the version designating the KNF as the supervisory authority, has been vetoed three times, most recently on 11 June 2026. As early as February 2026 the KNF warned that, without the designation of a competent authority, domestic entities would lose the ability to provide services and the Polish market would remain open only to foreign-licensed providers operating on a cross-border basis. The result is a situation in which the regulation operates while the statute it requires does not exist. To put it figuratively: the house has been built but the doors forgotten, and its occupants are asked to explain why they did not climb in through a window.
II. A Threshold Point Easily Overlooked: MiCA Is Not a Directive
The reflex is predictable. A question about State liability for breach of Union law directs the mind to the Francovich and Brasserie du Pêcheur line. The difficulty is that this construct arose on the ground of a failure to transpose a directive: an instrument that by design requires translation into national law and whose absence creates a gap in substantive law. Here there is no substantive gap. MiCA applies directly, and the entrepreneur and its clients may invoke it without more.
What, then, is missing? Not a substantive norm, but the institutional and procedural infrastructure: an authority to which an application may be submitted, and a procedure for its examination. This is the omission of an ancillary obligation arising not from any need to implement the regulation, but from the express command of the regulation itself (designate an authority), reinforced by the duty of sincere cooperation under Article 4(3) TEU (ensure the conditions for the effective application of Union law).
The significance of this distinction is practical. In Polish doctrine the typical case of liability for legislative omission against the background of Union law is the failure to implement a directive (see Z. Banaszczyk, in: System Prawa Prywatnego [System of Private Law], vol. 6). Our situation is cognate but not identical: the obligation concerns an accompanying statute whose enactment the regulation demands. The doctrinal logic in which Union law furnishes the source of the legislative obligation carries over directly, though this is terrain less worked by case law, a circumstance that candor requires be noted as a risk factor. At the same time, the distinction operates in the injured party’s favor: the obligation to designate a supervisory authority is unconditional and precise, and thus free of the legislative discretion that ordinarily complicates proof of the unlawfulness of an omission.
III. The Domestic Basis: Article 417¹ § 4 k.c. and Legislative Omission
The Polish legal order recognizes liability for so-called legislative omission. Under Article 417¹ § 4 of the Act of 23 April 1964, the Civil Code (Kodeks cywilny; „k.c.”), where damage has been caused by the failure to issue a normative act whose issuance is required by a provision of law, the unlawfulness of that omission is established by the court hearing the action for compensation.
The first and cardinal advantage of this basis is that it requires no prejudicial ruling (prejudykat). Unlike normative tort under Article 417¹ § 1 k.c., where a prior determination of the act’s non-conformity in the appropriate proceedings is needed, in the case of legislative omission unlawfulness is determined by the compensation court itself. The doctrinal reason is straightforward: Polish law provides no procedure for the declaration of legislative omissions (P. Sobolewski, in: Kodeks cywilny. Komentarz [Civil Code: Commentary], K. Osajda & W. Borysiak eds.; Z. Banaszczyk, op. cit.). This eliminates the barrier that, in disputes with the State Treasury, tends to be the hardest to surmount. It is worth distinguishing this basis from liability for a failure of supervision (Article 417 § 1 k.c.), where the absence of a prejudicial-ruling requirement proves not a convenience but a trap, since the burden of proving the underlying facts then rests entirely on the claimant (a point developed in a separate analysis of supervisory liability in the collapse of crypto-asset exchanges). Here the position is the reverse: the event giving rise to liability, namely the absence of the statute, is undisputed and notorious, and the difficulty lies in legal characterization, not in proof.
Second, the source of the obligation. Article 417¹ § 4 k.c. requires that the obligation to issue the act follow directly from a provision of law, and does not permit its derivation from general constitutional principles or from Article 2 of the Polish Constitution. It is not doubted in doctrine, however, that such an obligation may arise from international law, and in particular from Union law (Z. Banaszczyk; M. Pyziak-Szafnicka). Here the obligation is express: Article 93 MiCA mandates the designation of a competent authority, and Article 4(3) TEU mandates that the conditions for the regulation’s application be ensured.
Third, the time element. A legislative omission is most readily demonstrated where the provision mandating the act’s issuance fixes a time limit; upon its fruitless expiry the state of omission is established (Z. Banaszczyk; M. Wałachowska). MiCA has applied to CASPs since 30 December 2024, and the transitional period closes on 1 July 2026. The obligation is therefore not merely clear but overdue.
Fourth, the form of the omission. Doctrine distinguishes a proper omission (the act has not been issued at all) from a relative one (the act has been issued but is fragmentary). Whether § 4 also encompasses relative omission is, in our case, immaterial: no statute is in force. Moreover, the threefold enactment of the bill and its threefold veto leave a state in which the act simply does not exist. This is the purest case imaginable.
Case law lends support. The Supreme Court has held that the State Treasury is liable for legislative activity whose consequence is the de facto deprivation or restriction of the ability to exercise rights conferred by another legal act, because this renders the legal system dysfunctional and internally inconsistent (judgment of the Supreme Court of 30 June 2004, IV CK 491/03). The judgment of the Supreme Court of 4 August 2006 (III CSK 138/05, OSNC 2007, No. 4, item 63) admits liability for legislative omission where rights conferred on an individual clearly and unconditionally cannot be realized in consequence of the act’s non-issuance. That is the first limb of its holding, and it fits our case squarely: MiCA confers the right to apply for a CASP authorization, and the absence of a competent authority forecloses that path. Candor, however, requires citation of the second limb, the less convenient one: the provisions conferring those rights must define the essential features of the non-existent act to a degree permitting reconstruction of its minimum content without the court trespassing upon the competence of the legislature. It is this condition, not the first, that is the field of contest, and to it we return below. Finally, the Supreme Court has confirmed that a breach of Union law, including in the form of legislative omission, is adjudicated by the national court hearing the action for compensation, without a prior judgment of the Court of Justice (judgment of the Supreme Court of 19 June 2013, I CSK 392/12).
It is worth noting the distinction that explains why our case is stronger than the well-known attempts to sue the State for omissions during the pandemic. There the claims foundered, among other things, on the fact that the introduction of a state of emergency is constitutionally facultative: the framers used the word “may,” not “must” (see P. Sobolewski, op. cit.). With MiCA the reverse is true. The obligation to designate a supervisory authority is a “shall,” not a “may.” It is the mirror image of that losing construct.
IV. The Union Basis: The Francovich and Brasserie du Pêcheur Line
In parallel, and not in substitution, operates the liability of the Member State for breach of Union law. Francovich (Joined Cases C-6/90 and C-9/90) established it on three conditions: the rule infringed is intended to confer rights on individuals; the content of those rights is ascertainable on the basis of the Union rule itself; and a causal link exists between the breach and the damage. The requirement that the breach be sufficiently serious was added only by Brasserie du Pêcheur and Factortame (Joined Cases C-46/93 and C-48/93), and then for situations in which the State enjoys a wide margin of discretion. The distinction is not scholastic, for it has an edge: where there is in practice no margin, the threshold descends toward the ordinary, unqualified breach (Hedley Lomas, C-5/94; Dillenkofer and Others, Joined Cases C-178/94 and others), and the mere fact of the breach may suffice. The general consequences of the non-conformity of national law with Union law for individuals, including the conditions of State liability in damages and the avenue of reopening proceedings, are addressed in a separate study on the role of the case law of the Court of Justice in the application of Polish tax law.
Does this construct, born against the background of a failure to transpose a directive, reach a directly applicable regulation? It does. In Brasserie du Pêcheur the Court held that the right to reparation is the necessary corollary of the direct effect of the rule infringed, and is therefore not confined to cases of directives left untransposed. Moreover, in Francovich the Court regarded the possibility of seeking compensation as particularly indispensable where the effectiveness of a Union rule depends on prior State action and, in its absence, the individual cannot realize the rights the rule confers. It would be difficult to find a description closer to our situation: MiCA confers the right to apply for a CASP authorization, yet its realization depends on the State’s designation of an authority, which the State has not designated.
The first condition is met: the right to apply for a CASP authorization, and the freedom to provide services within the internal market, are rights conferred on the individual. As to the second, the facts themselves supply the arguments: one of the longest delays in the Union, a threefold veto, the status of one of the last States without a designated authority, and the lapse of the transitional period. This composes the picture of a qualified breach.
The third matter is sometimes the field of the gravest dispute, but not where the State Treasury expects it. The Brasserie line, originating (as it happens) in a French brewery’s action against Germany and in the British Factortame saga, holds that the State answers for the breach irrespective of which of its organs occasioned it: legislative, executive, or judicial, a line subsequently extended to the judiciary in Köbler (C-224/01). For Union law the State is a unity. The argument that the fault lies with a President exercising a prerogative, rather than with the government that enacted the statute, does not hold at the Union level. Let us add that, domestically, this impasse has no single author: a veto may be overridden by the Sejm by a three-fifths majority (Article 122(5) of the Polish Constitution), but that majority does not exist. This is a structural stalemate, not the act of a single organ, which all the more justifies treating the State as a whole. In passing, this closes the defense founded on the absence of fault: in Brasserie du Pêcheur the Court excluded any condition of fault going beyond the very elements of the breach. The argument that the impasse was blameless, because no one desired the harm, thus loses its significance once the breach is sufficiently serious.
The two bases interlock. Article 417¹ § 4 k.c. is the domestic vehicle of the claim, and where the legislative obligation leaves a wide margin of discretion the Polish courts import the Union criterion of a sufficiently serious breach into the assessment of the unlawfulness of the omission (Z. Banaszczyk). That criterion is not rigid: already in Brasserie du Pêcheur the Court tied the height of the threshold to the latitude the rule infringed leaves the State. The narrower the margin, the more readily the breach is qualified. As to the obligation to designate an authority, the margin is narrow in its essential dimension (the authority is to come into being, and that is no mere option), though not nil: the choice between the KNF and a separate authority, and the shape of the procedure, remained the subject of genuine dispute, and it is there that the State Treasury will site its defense. Here the second limb of the holding in III CSK 138/05 returns. The State will say that the minimum content of the missing statute cannot be reconstructed without supplanting the legislature, so that the claim fails, just as claims for compensation for property taken under earlier reforms failed (see again III CSK 138/05 and the resolution of the Supreme Court of 6 July 2006, III CZP 37/06, OSNC 2007, No. 4, item 56). That defense is not, however, decisive, for our counterfactual is concrete: had the statute been enacted, the entrepreneur could have applied for a CASP authorization and, having satisfied the conditions, operated lawfully. We do not, therefore, ask the court to invent the content of a benefit, but to find that, absent an authority, it was impossible to obtain the authorization that MiCA expressly provides for. In addition, the Union test sets only a minimum floor: national law may protect the injured party on more favorable terms, and the claimant invokes the standard more advantageous to it.
It is worth observing, finally, the point that orders the whole analysis. The direct applicability of MiCA bears on the three conditions unequally: on the existence of the claim, neutrally or favorably; on unlawfulness, favorably, since it narrows the margin of discretion; but on the causal link, adversely, because it is precisely that applicability which furnishes the State its passporting argument. The same feature is thus an ally in two links of the chain and an adversary in the third. To that third, the most difficult, we now turn.
V. The Strongest Counterargument: Passporting and the Causal Link
An honest analysis begins with the opponent’s best argument. The State Treasury will say: since MiCA applies directly, you could have obtained a CASP authorization in another Member State and operated in Poland on the basis of the European passport (Article 65 MiCA). The KNF itself indicated that such cross-border activity remains possible. Hence either the absence of an adequate causal link between the Polish omission and the damage, or the injured party’s contribution and a breach of the duty to mitigate (Article 362 k.c.).
The argument is strong, but double-edged, and for three reasons.
First, passporting into Poland is legally uncertain precisely in consequence of the State’s omission. The mechanism of Article 65 MiCA presupposes that the home authority notifies the host authority. Since in Poland there is no host authority, the notification has no addressee. There is, admittedly, a doorway in Article 65(4) MiCA (the commencement of activity no earlier than the fifteenth calendar day counted from the submission of the notification to the home authority, irrespective of any reaction by the host authority), but its practical efficacy remains open and is the subject of divergent assessments among market practitioners. The remedy on which the State relies is thus obscured by the State’s own omission.
Second, even successful passporting has its price. It requires obtaining an authorization and, as a rule, a presence (a seat or branch) in another State, the payment of fees, a restructuring of the corporate arrangement, and the lapse of months of licensing. These costs are an independent head of damage (damnum emergens) and at the same time evidence that the omission generates a real detriment.
Third, for an undertaking active solely on the Polish market a foreign license may be economically irrational: the absence of clientele and of cross-border infrastructure renders it an inadequate measure.
The conclusion is sober. The passporting argument does not negate the claim, but constitutes its greatest procedural risk and compresses the quantum of damage. Success depends in large part on demonstrating that, in the entrepreneur’s particular situation, passporting was unrealistic or disproportionately costly.
VI. Damage: How to Compute It and What Not to Omit
Damage is determined on general principles (Article 361 k.c.): as the difference between the state of the injured party’s assets and the state that would have obtained had the act been issued in time.
Lost profits (lucrum cessans) are computed from profit, not from revenue. The starting point may be an averaged profit over a representative period, but with three corrections: the subtraction of costs that ceased to be borne (salaries, infrastructure); a demonstration that the reference period reflects the normal course of business rather than an exceptional boom or bust of a market that has at times been extremely volatile; and proof to the standard of probability bordering on certainty required for lucrum cessans. It is worth adding that a wholesale exclusion of lost profits would, moreover, be contrary to Union law: in Brasserie du Pêcheur the Court held that, in commercial disputes, a refusal to make good lucrum cessans could render reparation illusory. This is an argument against any attempt to confine the damage to actual loss alone.
Actual loss (damnum emergens) will comprise the costs of an orderly wind-down of the business, to which ESMA for that matter calls, and, where incurred, the costs of relocation and passporting.
The future damage warrants separate attention. The thesis that Article 361 k.c. does not encompass it at all is too categorical. Lost profits falling in the period after judgment are recoverable, provided they are proven to the requisite probability; the temporal risk can also be contained by claiming compensation for a closed, defined period or by resorting to an action for a declaratory judgment (Article 189 k.p.c.). This is a matter of how the statement of claim is framed, not an insurmountable obstacle.
Finally, the circle of injured parties. Compensation may be sought only by the party whose legal situation the non-issued act was meant to concern, that is, the crypto-asset entrepreneur itself, not its employees or counterparties, whose detriment is derivative (Z. Banaszczyk). For an entity within MiCA’s scope, the normality of the causal link is, moreover, ordinarily to be presumed, since the non-issued act was precisely intended to enable its lawful operation.
VII. Litigation Strategy: A Pilot Action, Evidence, the Defendant
A few ordering points.
- No prejudicial ruling. This is the decisive advantage already mentioned: the unlawfulness of the omission is assessed by the compensation court itself, without the need for a prior ruling by another body.
- The defendant. Liability rests with the State Treasury, not the European Union; a foreign entity cannot be the addressee of a claim for legislative omission (P. Sobolewski). It is represented by the General Counsel’s Office of the Republic of Poland (Prokuratoria Generalna RP). The correct designation of the statio fisci, the organizational unit representing the State Treasury, requires care, but any error is not fatal: it is a matter of proper representation, not of passive standing, and a misdesignation of the State Treasury’s organizational unit constitutes, as a rule, a curable procedural defect rather than a ground of nullity; the appellate court designates and summons the proper statio fisci of its own motion (order of the Supreme Court of 27 February 2025, III CZ 285/24).
- A pre-action demand. It starts the running of interest and enables settlement; it is also an element in proving the damage.
- Financial statements for at least two years; client contracts terminated or expired; correspondence with the KNF; documented attempts and the impossibility of obtaining an authorization; an analysis of passporting costs; and an expert opinion on the value of the damage.
The wider dimension. The affected entities in Poland number in the hundreds. A first case therefore has precedential value and may precede coordinated action or a group action, with the latter’s familiar limitations as to the homogenization of claims. It is also worth watching the Union level: a possible infringement action by the European Commission against Poland under Article 258 TFEU would strengthen the element of a sufficiently serious breach, and successive ESMA statements on the orderly wind-down of activity co-shape the evidentiary context.
VIII. De Lege Ferenda: The Gap This Case Reveals
A closing reflection de lege ferenda. The architecture of liability, namely the Francovich line and Article 417¹ § 4 k.c., was conceived with directives, and with discretionary legislation, in mind. The case of a regulation that requires a domestic installation to operate, and where that installation is wanting on account of an internal political impasse, sits at the margin of that construct. It discloses a gap: a directly applicable regulation that presupposes a domestic institutional infrastructure creates a liability vacuum when the State’s legislative process seizes up. This is matter for a separate article, but also an argument that the courts should not read Article 417¹ § 4 k.c. too narrowly.
IX. Conclusion
Let us order the assessment in three registers of certainty.
It is certain that MiCA applies directly, that there is no domestic path to a CASP authorization, that 1 July 2026 closes the transitional period, that a claim under Article 417¹ § 4 k.c. requires no prejudicial ruling, and that the defendant is the State Treasury.
It is probable that the omission can be characterized as unlawful, since the obligation is clear, Union-derived, and overdue, and the breach as sufficiently serious.
Uncertain are the causal link in the face of the passporting argument, the quantum of damage, and the outcome of a case without a directly analogous precedent. The prospects should be assessed with caution, of the order of several tens of percent, and presented to the client as such; false certainty would be an abuse.
Robert Nogacki – licensed legal counsel (radca prawny, WA-9026), Founder of Kancelaria Prawna Skarbiec.
There are lawyers who practice law. And there are those who deal with problems for which the law has no ready answer. For over twenty years, Kancelaria Skarbiec has worked at the intersection of tax law, corporate structures, and the deeply human reluctance to give the state more than the state is owed. We advise entrepreneurs from over a dozen countries – from those on the Forbes list to those whose bank account was just seized by the tax authority and who do not know what to do tomorrow morning.
One of the most frequently cited experts on tax law in Polish media – he writes for Rzeczpospolita, Dziennik Gazeta Prawna, and Parkiet not because it looks good on a résumé, but because certain things cannot be explained in a court filing and someone needs to say them out loud. Author of AI Decoding Satoshi Nakamoto: Artificial Intelligence on the Trail of Bitcoin’s Creator. Co-author of the award-winning book Bezpieczeństwo współczesnej firmy (Security of a Modern Company).
Kancelaria Skarbiec holds top positions in the tax law firm rankings of Dziennik Gazeta Prawna. Four-time winner of the European Medal, recipient of the title International Tax Planning Law Firm of the Year in Poland.
He specializes in tax disputes with fiscal authorities, international tax planning, crypto-asset regulation, and asset protection. Since 2006, he has led the WGI case – one of the longest-running criminal proceedings in the history of the Polish financial market – because there are things you do not leave half-done, even if they take two decades. He believes the law is too serious to be treated only seriously – and that the best legal advice is the kind that ensures the client never has to stand before a court.
