BELGIUM Law and Practice Contributed by: Pierre E. Berger and Marc Van de Looverbosch, DLA Piper UK LLP (Brussels)
receive informal feedback before a formal licence or notification process is started. The feedback is useful in practice but is not a binding no-action letter. For tokenised financial instruments, the more rel- evant framework is the EU DLT Pilot Regime, which has applied since 23 March 2023. It permits eligible market participants to seek permission to operate DLT multilateral trading facilities, DLT settlement systems or combined DLT trading and settlement systems, with targeted exemptions from certain market infra- structure rules. This is not a Belgian sandbox as such, but Belgian market participants can rely on the EU framework where the relevant conditions are met. Belgian regulators are generally approachable for early discussions. They will not normally relax core requirements on licensing, AML/CFT, client protection, governance, outsourcing, data protection or market integrity merely because a project uses blockchain technology. 1.1.3 Regulation of Blockchain Technology The Belgian approach is technology-neutral. Block- chain technology, without more, is not regulated as a separate activity. Regulation is triggered by what the technology is used for:
Regulated firms using blockchain-enabled solutions must comply with their ordinary governance, outsourc- ing, operational resilience and data requirements. For banks, payment institutions, e-money institutions, investment firms, fund managers and insurers, this means analysing whether the blockchain provider per- forms a critical or important function, whether client assets or keys are involved, whether the arrangement creates concentration risk, and whether the firm can monitor, audit and terminate the outsourced activity. DORA, the EBA outsourcing framework as applied by the NBB, and sector-specific NBB/FSMA expecta- tions are therefore often more important than block- chain-specific rules. Data protection remains a central constraint. The GDPR applies where personal data is processed through or in connection with a blockchain product. The main tensions are: • data minimisation; • storage limitation; • accountability; • identification of controllers and processors; • international transfers; and • the rights to rectification and erasure. The EDPB’s draft Guidelines 02/2025 on processing of personal data through blockchain technologies, adopted in April 2025 for public consultation, sup- port the practical preference for avoiding personal data on-chain where possible, using off-chain stor- age, privacy-enhancing techniques, permissioned architectures, careful governance and a data protec- tion impact assessment before deployment where the processing is likely to result in a high risk to individu- als. Hashes and wallet addresses may still be personal data if they can be linked to an identifiable person, so purely technical anonymisation assumptions should
• issuing or offering crypto-assets; • providing crypto-asset services; • providing payment or e-money services; • offering investment instruments; • operating a market infrastructure; • carrying out fund activity; • processing personal data; or • marketing products to consumers.
The policy stance of the authorities is cautious and risk-based rather than prohibitive. Public initiatives and industry forums support practical blockchain use cases, but supervisors focus on consumer pro- tection, market integrity, AML/CFT, prudential sound- ness and operational resilience. Particular use cases are not generally encouraged or prohibited merely because they use blockchain; rather, the applicable law depends on the asset, rights, service and target clients.
be treated with caution. 1.1.4 Smart Contracts
Smart contracts are capable of being enforced in Bel- gium if they satisfy the ordinary requirements of Bel- gian contract law. There is no separate Belgian statute that gives smart contracts a special legal status, but there is also no general rule that prevents a contract
62 CHAMBERS.COM
Powered by FlippingBook