BELGIUM Law and Practice Contributed by: Joan Carette, Philippe De Prez and Thomas Derval, Simont Braun
meetings with fintechs to discuss their project prior to launching any formal demands. 2.6 Jurisdiction of Regulators There are two main regulators in Belgium for the financial services sector, which are of course also relevant for fintech companies. • The NBB – the competent supervisor for the prudential requirements applicable to credit institutions (CIs), insurance undertakings, e-money institutions (EMIs), payment institu - tions (PIs) and large stockbroking companies. • The FSMA – the competent supervisor for the prudential regime applicable to smaller investment companies, regulated credit providers, insurance intermediaries, crowd - funding platforms and financial intermediar - ies. The FSMA also oversees the conduct of business rules on insurance and investment services (in addition to more general author - ity over public offers, listed companies and the financial markets). The FSMA analyses local initiatives to ensure that they do not fall within existing regulations under its supervi - sion, such as public offerings or investment services. The FSMA furthermore supervises crypto-wallet and exchange service provid - ers, following the Belgian transposition of EU Directive 2018/843 of 30 May 2018 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (AMLD5). Its role will also most likely evolve in light of the EU Regula - tion 2023/1114 on markets in crypto-assets (MiCA), but Belgium has not officially desig - nated the competent authority yet. The FPS Economy: next to these two main supervisors, the Federal Public Service Econ - omy (FPS Economy) has very specific powers
regarding the conduct of business rules of regu - lated credit and payment services. 2.7 No-Action Letters Belgian regulators do not issue no-action letters; however, as outlined in 2.5 Regulatory Sand- box , a designated contact point enables fintech entrepreneurs to engage directly with the regula - tors and discuss the regulatory implications of their products or services. In that context, fin - techs can receive unofficial feedback from the regulator which, even if not binding, provides a certain level of comfort. 2.8 Outsourcing of Regulated Functions Regulated functions can only be outsourced to parties which are regulated for these functions. Financial institutions may outsource unregulat - ed, more operational functions to third parties, but under certain conditions. For CIs, investment firms, PIs and EMIs, the NBB has entirely integrated the European Banking Authority (EBA) guidelines on outsourcing into its supervisory practice. Under these guidelines, regulated entities are required: • to perform a substantive risk assessment before deciding to outsource; • to conduct thorough due diligence on the potential partner and the services before selecting the outsourced partner; • to remain liable towards their own clients, irrespective of the outsourcing arrangement; • to have a written outsourcing policy in place, containing a minimum set of mandatory pro - visions; and • on an ongoing basis, to supervise and control the outsourced activities (including through audits), record all outsourcing arrangements in a specific register and inform the NBB
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