BELGIUM Law and Practice Contributed by: Pierre E. Berger and Marc Van de Looverbosch, DLA Piper UK LLP (Brussels)
easier. On-chain control is therefore often essential evidence of performance, but it is not necessarily the sole legal source of ownership. Enforcing property rights over crypto-assets differs from enforcing rights over tangible assets because there is no physical possession and enforcement depends on private keys, exchange accounts, wallet infrastructure and traceability. A claimant may need interim measures, disclosure orders, account freezing, insolvency law remedies or contractual claims against custodians. Belgian courts have not yet developed a comprehensive crypto-asset property jurisprudence comparable to some common law jurisdictions. Where crypto-assets are held through an intermedi- ary, the legal position depends heavily on the cus- tody terms and asset segregation. Before MiCA, it was uncertain whether the client had a proprietary claim to specific assets or merely a contractual claim against the custodian. MiCA improves the position of clients by imposing segregation and custody obligations on CASPs holding client crypto-assets or the means of access to those crypto-assets, but careful contractual drafting remains essential. Collateral arrangements are possible but require careful structuring. Most native crypto-assets are not financial collateral within the ordinary financial collat- eral regime. A security right may be structured as a pledge over movable intangible assets and perfected through the Belgian pledge register, but control of pri- vate keys, valuation, enforcement, rehypothecation, insolvency priority and conflicts of law issues must be addressed expressly. If the token is a financial instru- ment or represents another regulated asset, the col- lateral analysis may change. 1.2.2 Access to Banking There is no general Belgian rule that prevents a CASP or blockchain business from using banks, pay- ment institutions or e-money institutions for ordinary banking and payment services. Conversely, there is no crypto-specific statutory right to obtain a bank account or payment account. In practice, access to banking remains one of the more difficult operational issues for crypto-asset businesses.
Banks and payment service providers apply enhanced due diligence to crypto-asset businesses because of AML/CFT, sanctions, fraud, consumer protection and reputational risks. They will typically expect a clear MiCA status or transition analysis, a descrip- tion of client flows, wallet and custody arrangements, source-of-funds controls, transaction monitoring, travel rule compliance, sanctions screening, govern- ance, outsourcing arrangements and the jurisdictions involved. Where the business model includes DeFi, mixers, privacy-enhancing coins, high-risk jurisdic- tions or non-custodial wallets, onboarding can be significantly more difficult. MiCA authorisation or a valid Article 60 notification should improve the position of regulated crypto busi- nesses, but it does not remove the bank’s own AML/ CFT and risk-management obligations. In addition, regulated payment or e-money services, safeguard- ing accounts and fiat rails must be provided by appro- priately authorised entities. A crypto firm cannot use a banking or payment partner to perform regulated activities that the crypto firm itself is not authorised to provide, unless the structure is properly designed as outsourcing, agency, distribution or white-labelling within the relevant regulatory perimeter. 1.2.3 ESG/Sustainable Finance There are ESG and sustainable finance considerations for digital assets, but Belgium has not introduced a separate domestic ESG regime specifically for crypto- assets. The most relevant rules are EU rules that apply directly or through ordinary financial sector regulation. Under MiCA, crypto-asset white papers and CASP dis- closures must address the principal adverse impacts on climate and other environment-related matters of the consensus mechanism used to issue the crypto- asset. This is particularly relevant for proof-of-work assets and for CASPs providing services in relation to such assets. These disclosures sit alongside MiCA’s broader transparency and marketing obligations. More generally, SFDR, the EU Taxonomy Regulation, CSRD and sector-specific product governance rules can become relevant where a financial market partici- pant, issuer or regulated firm markets an investment strategy, fund, structured product or other financial
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