BELGIUM Law and Practice Contributed by: Pierre E. Berger and Marc Van de Looverbosch, DLA Piper UK LLP (Brussels)
viability of launching a crypto-asset from Belgium depends on the token’s classification, target inves- tors, offer size, trading arrangements, issuer location, reserve or redemption features, and whether any regu- lated services are provided. For crypto-assets other than ARTs or EMTs, MiCA generally requires the offeror to be a legal person, draw up a crypto-asset white paper, notify it to the competent authority, publish it, ensure marketing communications are fair, clear and not mislead- ing, and comply with the offeror obligations. Certain exemptions exist, including offers to fewer than 150 persons per member state, offers below EUR1 mil- lion over 12 months, and offers addressed solely to qualified investors where the asset can only be held by qualified investors. The white paper is notified, not pre-approved, for this category. For ARTs, the regime is materially heavier. An issuer generally requires authorisation or must be a credit institution satisfying MiCA requirements, and the white paper is subject to approval. For EMTs, only credit institutions and e-money institutions may issue the token, and holders must have a redemption claim at par. EMT issuance is therefore closely linked to existing e-money regulation. Where the token is a financial instrument, MiCA does not apply and Belgian/EU securities laws must be considered. That can include prospectus require- ments, MiFID licensing, placement restrictions, mar- ket infrastructure rules and the Belgian intermediation monopoly for public offers of investment instruments. Pre-launch engagement with the FSMA or NBB is strongly advisable for any Belgian issuance or offer into Belgium. 2.5 Market Abuse MiCA has introduced a dedicated market abuse framework for in-scope crypto-assets. It applies to acts concerning crypto-assets that are admitted to trading or for which a request for admission to trad- ing has been made, and it applies to transactions, orders or behaviour whether or not they occur on a trading platform. The FSMA is the Belgian authority responsible for checking compliance with MiCA’s mar- ket abuse rules.
The prohibited behaviours are: • insider dealing; • unlawful disclosure of inside information; and • market manipulation. Inside information includes precise, non-public information relating directly or indirectly to issuers, offerors, persons seeking admission to trading or crypto-assets, where publication would likely have a significant effect on prices. For persons execut- ing client orders, client order information can also be inside information. Market manipulation includes false or misleading signals, securing prices at abnormal or artificial levels, deception or contrivance, and dis- seminating false or misleading information, including through the internet. The framework differs from the traditional Mar- ket Abuse Regulation (MAR) because it is tailored to crypto-assets rather than financial instruments. MiCA expressly recognises crypto-specific contexts, including social media, smart contracts, mining pools, DLT governance and the role of persons involved in the underlying technology. Derivatives or tokenised products that are financial instruments remain sub- ject to MAR where the ordinary conditions are met. In practice, some structures can therefore require par- allel analysis under MiCA, MAR and ordinary Belgian criminal or civil law. 2.6 Non-Compliance Belgian supervisors have shown that they are prepared to enforce crypto rules where cross-border providers target Belgium without the required regulatory basis. The most notable public example remains the FSMA’s decision of 23 June 2023 ordering Binance to cease offering virtual currency services in Belgium because services were being provided from non-EEA entities under the pre-MiCA Belgian AML regime. The FSMA also required the return or transfer of Belgian clients’ assets and notified the Brussels public prosecutor of facts potentially constituting a criminal offence. Under MiCA, non-compliance can lead to supervisory measures, public warnings, suspension or prohibition of offers or services, withdrawal of authorisation and administrative sanctions. AML/CFT breaches may
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