BELGIUM Law and Practice Contributed by: Pierre E. Berger and Marc Van de Looverbosch, DLA Piper UK LLP (Brussels)
or another financial services regime. A firm providing crypto-asset services to Belgian clients must have a valid MiCA authorisation, valid Article 60 notification or lawful transitional basis, unless the activity is genu- inely outside the regulatory perimeter. A third-country firm cannot actively solicit Belgian clients for in-scope services without an EU regulatory basis. Reverse solicitation is recognised under MiCA, but it is narrow. A third-country firm may provide a crypto- asset service to a Belgian or EU client only where the client initiates the service at the client’s own exclusive initiative. The firm may not use reverse solicitation to market new types of crypto-assets or crypto-asset services to that client, and generic website disclaim- ers are unlikely to be sufficient if the overall facts show active solicitation. MiCA marketing communications must be clearly identifiable, fair, clear and not misleading, consist- ent with the white paper where one is required, and must contain the prescribed responsibility statement. Where a white paper is required, marketing commu- nications cannot be disseminated before publica- tion of the white paper. For crypto-assets other than ARTs and EMTs, white papers are notified rather than approved, but marketing communications may need to be notified upon request. Belgian advertising rules remain relevant. The FSMA’s 2023 regulation on the distribution of virtual curren- cies to consumers continues to apply where the advertisement falls outside MiCA: for example, cer- tain influencer or intermediary advertising, or offers of crypto-assets with no identifiable issuer such as bitcoin. CASPs using the MiCA transitional regime must also continue complying with that regulation for advertisements disseminated when distributing virtual currencies to Belgian consumers. Mass media cam- paigns under the Belgian regime must be notified to the FSMA at least ten days before dissemination. 4.2 White Labelling White-label structures are possible, but an external firm cannot simply borrow or rent the licence of an authorised Belgian or EU entity. The regulatory analy- sis turns on who provides the regulated service to the client, who contracts with the client, who holds
client assets or keys, who controls execution, advice or order routing, who receives remuneration and how the service is presented. If the licensed entity is the true CASP and the white- label provider supplies only technology or operational support, the structure can be viable subject to MiCA outsourcing, governance, ICT, AML/CFT, data protec- tion and conflict-of-interest requirements. The struc- ture should not result in a regulated crypto-asset ser- vice, in particular custody and administration, being provided to EU clients by an unauthorised entity or an unauthorised third-country group entity. The licensed entity remains responsible to clients and supervisors and must be able to control, monitor and terminate the outsourced arrangement. If the external firm markets the service as its own, exercises discretion, receives and transmits orders, provides advice, handles custody, operates a trading platform or otherwise performs a crypto-asset ser- vice, it may itself require MiCA authorisation or noti- fication. The client-facing documentation, branding, complaints process and disclosures should make the roles of the parties clear and avoid misleading clients as to who is authorised and responsible. DeFi is not prohibited as a category in Belgium. The difficulty is that Belgian and EU financial regulation applies by function and substance, while many DeFi projects are designed to avoid a centralised opera- tor. A genuinely decentralised protocol with no issuer, offeror or service provider may fall partly outside MiCA as currently drafted, but this conclusion is highly fact- specific and should not be assumed merely because a project uses smart contracts or a DAO label. Where there is an identifiable promoter, developer, governance body, foundation, interface operator, liquidity arranger, token issuer, validator, custodian or other intermediary, ordinary rules may apply. These can include: • MiCA; 5. Decentralised Finance 5.1 Ability to Use DeFi
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