NETHERLANDS Law and Practice Contributed by: Roderik Vrolijk, Rogier Raas, Ingrid Viertelhauzen and Maarten Weekenborg, Stibbe
10.6 Staking MiCAR does not classify staking as a standalone crypto-asset service and does not prohibit it. Direct staking by crypto-asset holders on a proprietary basis is unregulated. However, where staking is offered as a service to clients through an intermediary (staking- as-a-service), the provider typically holds the clients’ crypto-assets or private keys. ESMA has confirmed in its Q&A that this constitutes custody and admin - istration of crypto-assets, which is a regulated CASP service requiring AFM authorisation under MiCAR. ESMA’s guidance imposes several conditions on CASPs offering staking services. The CASP must obtain explicit client consent before staking their assets. Staking profits must be allocated to the cli - ents whose assets are staked, not retained solely by the CASP. Notably, ESMA states that if staking ser - vices are combined with custody services, losses of crypto-assets stemming from the provision of staking services provided to the client, and from the underly - ing staking activity itself, should be deemed as attrib - utable to the CASP. The European Commission is mandated under Arti - cle 142 of MiCAR to assess the need for dedicated regulation of staking and lending services, indicating that further legislative developments in this area are anticipated. 10.7 Crypto-Related Lending Crypto lending is explicitly excluded from MiCAR and therefore not regulated under that framework. There is no dedicated Dutch legislation governing these activities. However, depending on the structure of the arrangement, existing regulatory frameworks under the Wft may apply. Consumer lending in crypto-assets may require a licence, accepting repayable funds from the public may trigger a banking licence requirement, and pooling investor funds for crypto lending may qualify as a collective investment scheme under the AIFMD. The European Commission (EC) is mandated by MiC - AR to assess the need for dedicated EU regulation of crypto lending and borrowing. The EBA and ESMA provided an analytical contribution in January 2025. Future EU-level rules in this area may follow.
10.8 Cryptocurrency Derivatives MiCAR does not cover derivatives whose underlying is a crypto-asset. Where such derivatives qualify as financial instruments under MiFID II, the full MiFID II framework applies, including licensing, conduct-of- business and transparency requirements. The AFM has confirmed that the qualification as a financial instrument does not depend on the derivative’s struc - ture but on its settlement method, noting that a deriva - tive may qualify as a financial instrument if it is settled in cash, ARTs, EMTs or physical delivery. Crypto contracts for difference (CFDs) are subject to the AFM’s permanent product intervention measures, including a 2:1 leverage cap for retail investors, man - datory risk warnings and margin close-out protection. ESMA has clarified that perpetual futures on crypto- assets are likely to qualify as CFDs and therefore fall MiCAR does not regulate DeFi as a distinct category. The recitals to MiCAR provide that fully decentral - ised crypto-asset services without any intermediary fall outside MiCAR’s scope, but this exemption is narrowly framed and its boundaries remain unclear. Where an identifiable entity controls or facilitates a service, including through front-end interfaces, gov - ernance structures or wallets, MiCAR applies regard - less of the protocol’s technical architecture. The EBA and ESMA have observed that full decentralisation is rare in practice. Critically, MiFID II does not contain a decentralisa - tion exemption. DeFi protocols facilitating trading in crypto-assets that qualify as financial instruments are subject to MiFID II irrespective of their technological design. In the Netherlands, the AFM assesses the actual degree of intermediation on a case-by-case basis. within the scope of these restrictions. 10.9 Decentralised Finance (DeFi) The EC is mandated under Article 142 of MiCAR to assess whether dedicated regulation of decentralised systems is needed. Further legislative developments in this area may follow.
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