NETHERLANDS Law and Practice Contributed by: Roderik Vrolijk, Rogier Raas, Ingrid Viertelhauzen and Maarten Weekenborg, Stibbe
ues, MiCAR introduces a separate category of trad - ing platforms for crypto-assets, for which a licence is required from the AFM. 6.2 Regulation of Different Asset Classes The regulatory regime applicable to an asset depends primarily on its classification under EU law, which recognises several types of asset classes. Financial instruments, including transferable securities, mon - ey-market instruments and certain options, futures, swaps, forwards and other derivative contracts, are governed by MiFID II. Crypto-assets are governed by MiCAR, which distinguishes between: • e-money tokens (EMTs); • asset-referenced tokens (ARTs); and • crypto-assets other than EMTs or ARTs. EMTs aim to maintain a stable value by referencing the value of one official currency. ARTs aim to maintain a stable value by referencing another value or right, or a combination thereof, including one or more official currencies, but do not qualify as EMTs. The regulatory regime applicable to ARTs and EMTs is more stringent than the regime applicable to other crypto-assets. 6.3 Impact of the Emergence of Cryptocurrency Exchanges The emergence of cryptocurrency exchanges has been one of the key drivers behind the adoption of MiCAR. Prior to MiCAR, the operation of trading platforms for crypto-assets was largely unregulated, creating risks relating to consumer protection, mar - ket integrity and financial crime. To address these risks, MiCAR introduced a licensing requirement for the provision of crypto-asset services, including the operation of trading platforms for crypto-assets. Fully decentralised trading platforms for crypto-assets (ie, without any intermediary) are, however, excluded from the scope of MiCAR. 6.4 Listing Standards When securities are admitted to trading on a regulated market or offered to the public, a prospectus must be published in accordance with the Prospectus Regula - tion. The prospectus must contain all information nec - essary for investors to make an informed assessment of the issuer’s financial position, the rights attached to
the securities and the reasons for the issuance of the securities and its impact on the issuer. The prospectus must be approved by the AFM prior to its publication. Certain exceptions or an exemption to the prospectus requirements may apply. In addition to the Prospectus Regulation, trading venues may impose their own list - ing standards. If an ART, EMT or other crypto-asset is offered to the public or admitted to trading, a crypto-asset white paper must be drawn up and published in accordance with MiCAR. Certain exceptions to this requirement may apply. The crypto-asset white paper contains necessary information for (potential) investors to make well-informed investment decisions. 6.5 Order Handling Rules Various order handling rules apply to trading platforms and marketplaces, covering areas such as trading rules, organisational requirements, best execution and transparency. Regulated markets, MTFs and OTFs must, for example, establish transparent rules and procedures to ensure fair and orderly trading, as well as objective criteria for the efficient execution of orders. A similar requirement applies to trading plat - forms for crypto-assets under MiCAR: a crypto-asset trading platform must set non-discretionary rules and procedures to ensure fair and orderly trading and objective criteria for the efficient execution of orders. In addition to these specific obligations for trading platforms, investment firms and crypto-asset service providers more broadly are subject to other order han - dling rules, including the best execution requirement. 6.6 Rise of Peer-to-Peer Trading Platforms The rise of peer-to-peer trading platforms has reduced the reliance on (traditional) brokers and other interme - diaries. This has put pressure on the traditional play - ers, particularly with respect to their fee structures and profit margins. This has also led to increased competition across the market, including among the fintech players. From a regulatory perspective, the rise of peer-to-peer trading platforms poses various regu - latory challenges, notably with respect to AML/CFT, investor protection and cross-border supervision.
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