BELGIUM Law and Practice Contributed by: Pierre E. Berger and Marc Van de Looverbosch, DLA Piper UK LLP (Brussels)
ARTs and crypto-assets other than ARTs or EMTs. Utility tokens are a subcategory of the latter. Unique and non-fungible crypto-assets are generally outside MiCA unless their features or issuance structure show that they are not genuinely unique or that the arrange- ment should be recharacterised. Existing Belgian and EU financial regulation still mat- ters. A token that qualifies as a financial instrument is outside MiCA and may trigger MiFID II, the Belgian Investment Services Act, the Prospectus Regulation, Belgian prospectus law, market abuse rules for finan- cial instruments, CSDR and, where relevant, the DLT Pilot Regime. A tokenised fund interest may trigger AIFMD or UCITS rules. A payment or e-money struc- ture may trigger the Belgian Payment Institutions Act and e-money rules, in addition to MiCA for EMTs. MiCA regulates public offers and admissions to trad- ing of in-scope crypto-assets, issuance of ARTs and EMTs, and the provision of crypto-asset services. Regulated crypto-asset services include: • custody and administration; • operating a trading platform; • exchanging crypto-assets for funds or other crypto-assets; • executing orders; • placing, receiving and transmitting orders; • advice; • portfolio management; and • transfer services. Belgian law also contains product and marketing restrictions. The FSMA’s 2014 regulation prohibits the professional marketing to non-professional clients of certain financial products whose return depends directly or indirectly on virtual money. MiCA also restricts the admission of crypto-assets with an inbuilt anonymisation function to trading platforms unless holders and transaction history can be identified by the platform operator. Retail crypto-asset marketing is not prohibited as a category, but it is subject to MiCA and, where MiCA does not apply, the FSMA’s 2023 virtual currency advertising regulation. The most important upcoming practical change is the end of the CASP transitional period on 1 July 2026.
After that date, firms relying on transitional arrange- ments must either have a MiCA authorisation, valid Article 60 notification or another lawful basis, or cease the relevant services in the EU. 2.3 Regulated Firms and Legal Wrappers Using a legal wrapper such as a fund does not avoid the regulatory analysis in 2.2 Crypto-Asset Regulato- ry Frameworks . It changes the legal object purchased by investors, but the fund, its manager, depositary, distributor and portfolio may each trigger their own regulatory regimes. A fund investing in crypto-assets may be an AIF and require an authorised or registered AIFM, a deposi- tary where required, valuation procedures, risk man- agement, disclosures and marketing compliance. A UCITS structure is more constrained because UCITS eligible asset rules do not generally accommodate direct holdings of native crypto-assets. Retail distri- bution of fund products with crypto exposure also raises suitability, product governance, risk disclosure and marketing issues. Derivative exposure to crypto- assets must be assessed under derivatives, prospec- tus, MiFID and retail product rules. Regulated firms with crypto exposure must consid- er prudential, conduct, operational, accounting and governance consequences. Banks and other NBB- supervised entities should assess the NBB’s expecta- tions on crypto-asset exposures, Basel/EU prudential treatment, AML/CFT, outsourcing, custody and risk governance. Investment firms, portfolio management companies, UCITS management companies and AIF managers may be able to provide certain crypto-asset services under MiCA Article 60 notification where the services are equivalent to their existing permissions, but they cannot simply extend into custody or other services beyond that equivalence. Where they provide a service outside Article 60 equivalence, a full CASP authorisation may be required. 2.4 Token Issuance Belgium has not become a large domestic ICO or token generation event hub. Issuance activity is now expected to be structured under MiCA or, where the token is a financial instrument, under the ordinary securities and financial services framework. The
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