BELGIUM Law and Practice Contributed by: Joan Carette, Philippe De Prez and Thomas Derval, Simont Braun
3. Robo-Advisers 3.1 Requirement for Different Business Models Broadly speaking, an asset can be a MiFID financial instrument, a MiCA crypto-asset or another non- regulated asset. The business model applicable to each asset depend on their legal regime, as most are regulated, require a licence and are subject to strict conduct-of-business rules. For a financial instrument the services provided through robo-advisers qualify as order execution, investment advice or portfolio management under the MiFID II and the Belgian Law of 2 August 2002 on the supervision of the financial sector and financial ser - vices (Financial Supervision Law), depending on their scope. This also includes financial instruments issued by means of distributed ledger technology (DLT). Therefore, companies offering robo-advisory services directly to Belgian investors should be licensed as Bel - gian investment firms or credit institutions, or should be able to rely on the passporting of an EEA member state investment firm or credit institution licence to operate on the Belgian market. Belgian law provides for two types of investment firm licences: • portfolio management and investment advice com - panies supervised by the FSMA; and • stockbroking firms supervised by the NBB. Stockbroking firms can provide all investment ser - vices regulated under MiFID II. By contrast, portfolio management and investment advice companies may only provide the reception and transmission of orders, order execution, portfolio management and invest - ment advice services. For crypto-assets (ie, “cryptocurrency” in the form of an asset-referenced token or e-money token) that do not qualify as, amongst others, financial instruments and funds, the robo-adviser will have to comply with the MiCA provisions for the issuance, offer to the pub - lic and admission to trading of crypto-assets or those regarding the provision of services related to crypto- assets. Often, a MiCA-licensed entity will establish a
partnership with an exchange to ensure a smooth and integrated service to their clients for those services that fall outside their own regulated activities. Robo-advisers are sometimes also offered as pure IT technology tools (under a user licence agreement) to regulated firms licensed to provide investment ser - vices. In such a case, the company offering the tool does not need to be licensed – the licence of its client (eg, a credit institution or an investment firm) suffices. Outside financial regulations, robo-advisers may also fall within the scope of the AI Act. Depending on the technical characteristics, robo-adviser technology may qualify as an AI system under the AI Act, in which case both the developers of the tool and the financial entity making use of the tool may be subject to addi - tional requirements. The AI Act enters into application in different stages, with the first stages being applica - ble as of 2 February 2025 and full application foreseen on 2 August 2026. Finally, and to be complete, it should also be noted that, in some instances, robo-advisers are used to automate transactions on unregulated assets, which may fall outside the scope of any regulatory frame - work. In these instances, robo-advisers may find themselves in a regulatory blind spot and cannot ben - efit from a European passport. When such services reach a certain size, it is highly advisable to discuss them with the regulators. 3.2 Legacy Players’ Implementation of Solutions Introduced by Robo-Advisers The rise of robo-advisers has put pressure on legacy players, as they were expected to soon become a core product for many investors. In response, multi - ple legacy players have developed their own in-house robo-advice platforms, outsourced part or all of their investment services to a regulated robo-adviser or entered into a licence agreement with a technical service provider to use robo-advice for internal use or for their clients. 3.3 Issues Relating to Best Execution of Customer Trades The best execution rule of MiFID II and its transposing regulations applies equally to robo-advisers, as the
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