BELGIUM Law and Practice Contributed by: Pierre E. Berger and Marc Van de Looverbosch, DLA Piper UK LLP (Brussels)
• AML/CFT; • the Transfer of Funds Regulation; • financial instruments regulation; • payment services; • consumer protection; • market abuse; • sanctions; • data protection; and • tax rules.
who operates the user interface, who decides proto- col changes, who receives fees and who can pause or upgrade the protocol. Governance documents should address token-holder rights, voting, conflicts, delegation, treasury management, liability, tax and wind-down. There are no DeFi-specific capital requirements in Belgium. Capital or own-funds requirements arise if the vehicle is a regulated CASP, payment institution, e-money institution, investment firm, fund manager, issuer of ARTs or another regulated entity. For unregu- lated corporate vehicles, ordinary Belgian company law applies, including the requirement that founders of a BV/SRL provide sufficient initial equity for the planned activity, even though there is no statutory minimum capital for that form. An NV/SA remains subject to minimum capital requirements. 5.3 Liability There are no leading Belgian court decisions or pub- licly reported Belgian regulatory enforcement actions that provide a comprehensive DeFi liability framework. Judges and regulators would therefore be expected to apply ordinary principles of Belgian civil, commercial, financial, criminal and consumer law. The absence of a centralised company or the use of a DAO does not automatically prevent liability. Poten- tially accountable persons may include founders, developers, promoters, interface operators, govern- ance participants, directors, token issuers, custodi- ans, liquidity providers, advisers or regulated firms that integrate the protocol into their own services. The relevant test will be what each person actually did, controlled, represented or benefited from, and whether a statutory duty, contractual duty, tort duty, AML/CFT duty or consumer protection obligation was breached. Regulators are likely to look at substance over form. A project described as decentralised may still have an identifiable person providing a regulated service if that person controls access, fees, listings, custody, key infrastructure, governance or client communications. For regulated firms, using DeFi does not shift respon- sibility to the protocol. The firm must still comply with suitability, conduct, governance, outsourcing, opera-
CeFi firms in Belgium may use DeFi infrastructure only if they can still comply with their own obligations. Key concerns include: • custody and segregation;
• private-key control; • smart contract risk; • oracle risk;
• transaction finality; • conflicts of interest; • outsourcing; • DORA; • AML/CFT and sanctions screening; • travel rule compliance where transfers are made through CASPs; • market abuse surveillance; • valuation; • accounting; and • client disclosures. A regulated firm must be able to explain how it controls the risks of a protocol that it does not itself control. 5.2 DeFi Structures Belgian law does not recognise a DAO as a separate legal form. A DeFi project with Belgian connections will usually need one or more ordinary legal vehicles if it wants to contract, employ staff, hold assets, raise funding, own intellectual property, open accounts, pay taxes or interact with regulators. Depending on the activity, this may be a Belgian company such as a BV/SRL or NV/SA, a Belgian non-profit association or foundation, or a foreign foundation or company com- bined with Belgian service providers. The structure is normally driven by substance: who develops the code, who owns the intellectual prop- erty, who issues tokens, who controls treasury assets,
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