BELGIUM Law and Practice Contributed by: Pierre E. Berger and Marc Van de Looverbosch, DLA Piper UK LLP (Brussels)
already under its prudential supervision, the FSMA is central for specified conduct, marketing, white paper and public-offer aspects, and the Federal Public Service Economy is competent for MiCA Article 49 (4) to (6) and Article 50 (1) and (3) on EMT issuance, redemption and interest-related rules. The exact allo- cation depends on the type of token and the status of the issuer. 6.2.3 Backing Assets For ARTs, MiCA requires the issuer to maintain a reserve of assets supporting the claim of holders. The reserve must be managed so that liquidity, market and credit risks are controlled, and it must be separated from the issuer’s own assets. Reserve assets must be held by appropriate custodians and invested only in secure, low-risk and highly liquid financial instruments where investment is permitted. The issuer must have policies for reserve management, custody, conflicts, liquidity, stress testing and redemption. For EMTs, the analysis is closer to e-money. The issuer must be a credit institution or e-money institu- tion, holders must have a redemption claim at par, and funds received in exchange for the EMT must be safe- guarded under the applicable e-money regime. Sig- nificant EMTs may become subject to additional MiCA requirements, including requirements that resemble parts of the ART reserve framework. MiCA prohibits issuers and CASPs from granting inter- est in relation to ARTs or EMTs. This is a key com- mercial constraint for fiat-backed and other stablecoin models, particularly where the backing assets gener- ate yield. The yield may support the issuer’s econom- ics only within the limits of MiCA, e-money law, client disclosures and the prohibition on interest to holders. 6.2.4 Special Considerations MiCA contains a special regime for significant ARTs and significant EMTs. Significance is assessed at EU level using criteria such as: • the number of holders; • value issued; • transaction volume; • reserve size; • cross-border activity;
• interconnection with the financial system and potential impact on monetary policy; • payment systems; and • financial stability. Where a token is classified as significant, the EBA becomes the lead supervisor for important aspects of the regime, with colleges and input from national competent authorities, the ECB and relevant central banks. Significant token issuers are subject to stricter obligations, including enhanced own-funds, liquidity, reserve, governance, stress-testing and reporting requirements. For Belgium, systemic stablecoin concerns would also involve the NBB and potentially the ECB, especially where the token is used as a means of exchange, interacts with payment systems, references the euro or another official currency, or creates prudential, monetary policy or financial stability risks. Stablecoins referencing non-EU currencies can raise additional concerns if they are used at scale in the EU. 7. Tokenisation and Real-World Assets 7.1 Treatment Belgian law generally regulates tokenised assets and real-world asset tokens according to the rights they represent, not according to the fact that a blockchain is used. Tokenisation does not transform the underly- ing asset into an unregulated product and does not, by itself, transfer ownership of the off-chain asset. If the token is a financial instrument, traditional secu- rities and investment services rules apply. This may include MiFID II, prospectus rules, Belgian rules on investment instruments, market abuse, CSDR and, where the relevant conditions are met, the EU DLT Pilot Regime. The DLT Pilot Regime is specifically designed for DLT market infrastructures handling financial instruments and allows limited, conditional exemptions from ordinary market infrastructure rules. If the token represents a contractual claim to an off- chain asset, such as commodities, receivables, real estate interests, carbon credits or other real-world assets, the legal analysis depends on the underlying
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