Fintech 2026

NETHERLANDS Law and Practice Contributed by: Roderik Vrolijk, Rogier Raas, Ingrid Viertelhauzen and Maarten Weekenborg, Stibbe

10.10 Regulation of Funds Funds investing in crypto-assets typically qualify as alternative investment funds (AIFs) under the AIFMD. Their managers must be either licensed by the AFM (full AIFMD regime) or registered under the light regime for sub-threshold managers. Licensed AIFMs are subject to comprehensive requirements covering governance, delegation, risk management, depositary obligations and investor disclosure. Light AIFMs face lighter obligations but cannot passport across the EEA. UCITS are generally unable to invest directly in crypto-assets under the eligible asset rules. Indirect exposure – for example, through listed crypto exchange-traded products (ETPs) – may be permis - sible within the applicable investment restrictions. The regulatory treatment of the transactions by fund managers depends on the classification of the under - lying assets. If crypto-assets qualify as financial instru - ments, MiFID II applies to the fund’s service providers and if the assets are in scope of MiCAR, the custody provider may require CASP authorisation. The revised AIFMD II, applicable from April 2026, will introduce new rules on loan origination and liquidity management that may be relevant for crypto-focused fund strategies. 10.11 Virtual Currencies The term “virtual currency” was defined in the Wwft, implementing AMLD5, as a digital representation of value not issued by a central bank, not attached to legal currency, but accepted as a means of exchange and transferable electronically. This was a narrow AML-focused classification. MiCAR has introduced the broader concept of “cryp - to-asset”, defined as any digital representation of value or rights that can be transferred and stored electronically using distributed ledger technology. This encompasses ARTs, EMTs and all other crypto- assets. Unlike the Wwft definition, MiCAR provides a comprehensive regulatory framework covering issu - ance, white paper obligations, governance, conduct- of-business and market abuse. The Dutch Wwft reg - istration regime for virtual currency service providers has been superseded by MiCAR’s CASP licensing regime as of 1 July 2025.

10.12 NFTs Genuinely unique and non-fungible tokens are excluded from MiCAR and are not subject to specific crypto-asset regulation in the Netherlands. Platforms facilitating trading in such NFTs do not require CASP authorisation from the AFM for those transactions. The exclusion requires a substantive, case-by-case assessment. Following ESMA guidance, the AFM evaluates uniqueness based on intrinsic character - istics, utility and attached rights rather than technical identifiers. NFTs issued in large series or as collections are treated as an indicator of fungibility, and fraction - al parts of an NFT are not automatically considered unique. Where tokens are functionally substitutable, MiCAR applies in full. Separately, an NFT that meets the criteria of a financial instrument under MiFID II is subject to the existing financial regulatory framework, including the Prospec - tus Regulation and MAR, irrespective of any MiCAR exemption. 10.13 Stablecoins MiCAR does not use the term “stablecoin” but cap - tures these instruments through two categories. EMTs reference a single official currency and may only be issued by credit institutions or electronic money insti - tutions. ARTs reference multiple assets or rights and require dedicated authorisation from DNB, unless the issuer is already a licensed credit institution. Both cat - egories require a white paper. Reserve requirements differ by category. ART issu - ers must maintain a reserve of assets backing the tokens, invested in highly liquid, low-risk instruments and held in segregated custody. EMT issuers must deposit at least 30% of received funds in segregated credit institution accounts. Holders of ARTs have a right of redemption at market value, and EMT holders may redeem at par at any time. Issuers of ARTs and EMTs are prohibited from granting interest to holders. DNB supervises Dutch-licensed ART and EMT issu - ers. Where a token is classified as “significant” by the EBA in accordance with MiCAR, the EBA acts as the primary supervisor and stricter requirements apply (eg, in relation to own funds and liquidity).

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