BELGIUM Law and Practice Contributed by: Pierre E. Berger and Marc Van de Looverbosch, DLA Piper UK LLP (Brussels)
also lead to administrative sanctions or criminal con- sequences under the Belgian AML Act. Consumer, advertising and data protection breaches can be enforced by the relevant authorities in parallel. For cross-border breaches, Belgium will rely increas- ingly on MiCA’s home/host authority co-operation model, ESMA and EBA co-ordination, and the EU register of white papers, issuers and CASPs. A third- country firm cannot avoid the regime merely by using a foreign website or contractual disclaimer if it actively solicits Belgian or EU clients. The regulatory attitude over the next 12 months is likely to be active but implementation-focused. Super- visors are expected to prioritise MiCA authorisation and notification processes, the end of the transitional period, AML/CFT and travel rule compliance, market- ing to retail clients, custody and operational resilience. 3. Licensing and Set-Up Requirements 3.1 Licensing Requirements A licence, authorisation or notification is required where the activity, not the technology, falls within a regulated perimeter. The main trigger for a crypto- asset business is the professional provision in the EU of a crypto-asset service under MiCA, such as custody and administration, operating a trading plat- form, exchange against funds or other crypto-assets, execution, placing, reception and transmission of orders, advice, portfolio management or transfer ser- vices. Standalone CASPs generally require Article 63 authorisation, while certain financial entities can pro- vide equivalent services after an Article 60 notification. Other triggers remain relevant. Issuing or offering ARTs or EMTs, offering crypto-assets to the public, seeking admission to trading, issuing financial instru- ments, operating a market infrastructure, provid- ing investment services, managing a fund, issuing e-money, providing payment services or conducting crowdfunding can each require separate authorisation or compliance. MiCA has an EU territorial perimeter. A CASP author- ised under Article 63 must have a registered office in
a member state where it carries out at least part of its crypto-asset services, have its place of effective management in the EU and have at least one director resident in the EU. Belgium may be the home member state where the CASP has its registered office in Bel- gium, or where a non-EU offeror without an EU branch first offers the crypto-asset to the public in Belgium or first seeks admission to trading there. Separately, Belgian tax residence, company law, AML/CFT and establishment questions may arise if key manage- ment, staff or infrastructure are in Belgium. MiCA contains a transitional regime. CASPs that pro- vided services in accordance with applicable national law before 30 December 2024 may continue until 1 July 2026 or until authorisation is granted or refused, whichever occurs first. In Belgium, the FSMA has stated that it did not grant any registrations under the pre-MiCA national VASP rules. EEA providers relying on a national authorisation in their home member state may only rely on transition in Belgium if they were already active in Belgium on 30 December 2024 and were permitted to do so under their home regime. 3.2 Set-Up Requirements A standalone CASP seeking authorisation in Belgium must submit an application to the competent author- ity, generally the FSMA unless the Belgian MiCA implementing law allocates prudential supervision to the NBB because of the applicant’s existing regulated status. The application must describe the following: • services; • business plan;
• governance; • shareholders;
• management body; • prudential resources; • ICT systems; • safeguarding and custody arrangements; • outsourcing; • conflicts of interest; • complaints handling; • AML/CFT framework; • market abuse controls where relevant; and • wind-down arrangements.
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