NETHERLANDS Law and Practice Contributed by: Roderik Vrolijk, Rogier Raas, Ingrid Viertelhauzen and Maarten Weekenborg, Stibbe
competent authorities to supervise compliance and enforce a licensing regime. Both the AFM and DNB have indicated that block - chain-based applications are subject to close super - visory attention. DNB is the primary supervisor of EMT and ART issuers, and the AFM is the primary supervi - sor of CASPs. The AFM and DNB regularly publish updates concerning the MiCAR framework through their websites, including newsletters, regulatory guid - ance, warnings and Q&A. 10.3 Classification of Blockchain Assets Not all blockchain assets are financial instruments. Dutch and EU law classify digital assets based on their economic function rather than the underlying technol - ogy. Where a crypto-asset qualifies as a transferable security or other financial instrument under MiFID II, the existing financial regulatory framework applies, including the Prospectus Regulation and MAR. Crypto-assets that fall outside the scope of MiFID II are governed by MiCAR, which introduces a layered classification. MiCAR defines crypto-assets broadly as any digital representation of value or rights that can be transferred and stored electronically using distrib - uted ledger technology. Within this definition, three categories are distinguished: • asset-referenced tokens (ARTs), which maintain a stable value by referencing one or more assets such as currencies or commodities; • electronic money tokens (EMTs), which are pegged to a single official currency; and • all other crypto-assets that do not fall into either category. Each classification carries distinct requirements regarding authorisation, reserve obligations, govern - ance and disclosure, supervised in the Netherlands by the AFM and DNB. 10.4 Regulation of “Issuers” of Blockchain Assets Any person offering crypto-assets to the public or seeking admission to trading must publish a white paper and notify the AFM. The white paper must con - tain information on the offeror, the underlying technol -
ogy, and the rights and obligations attached to the crypto-asset. The offeror is liable to holders for losses resulting from information in the white paper that is not complete, fair or clear, or that is misleading. Stricter rules apply to specific token categories. Issu - ers of ARTs require prior AFM authorisation and must submit detailed documentation, including proof of management expertise, internal governance policies and information on the reserve of assets backing the token. Issuers of EMTs must be authorised as a credit institution or electronic money institution and notify the relevant competent authority of their white paper. Tokenisation of real-world assets faces specific obsta - cles under Dutch private law. For example, the trans - fer of immovable property requires a notarial deed registered with the Land Registry ( Kadaster ), and the transfer of shares in a Dutch limited liability company requires execution of a deed before a civil-law notary. These formalities cannot currently be replaced by a blockchain transaction, meaning that tokens repre - senting such assets can convey only a contractual claim, not direct legal title. 10.5 Regulation of Blockchain Asset Trading Platforms Crypto-asset trading platforms must be authorised by the AFM as CASPs under MiCAR. The Dutch transi - tional regime expired on 1 July 2025, after which all CASPs require a MiCAR licence or an EU passport. Platform operators face specific requirements, includ - ing crypto-asset admission assessments, a ban on dealing on own account against clients and the imple - mentation of market abuse detection systems. All forms of intermediated secondary trading in crypto- assets (exchange services, order execution, reception and transmission) fall within MiCAR’s CASP frame - work. Where tokens qualify as financial instruments, MiFID II and the trading venue regime apply instead. MiCAR introduces its own market abuse provisions covering insider dealing and market manipulation. Genuinely decentralised peer-to-peer trading with - out an identifiable intermediary falls outside MiCAR’s scope.
579 CHAMBERS.COM
Powered by FlippingBook