BELGIUM Law and Practice Contributed by: Joan Carette, Philippe De Prez and Thomas Derval, Simont Braun
services has garnered particular attention from the Belgian regulator. 2.14 Impact of AML and Sanctions Rules Belgium has transposed all EU AML require - ments into its Law of 18 September 2017 on the prevention of money laundering and terror - ist financing and on the restriction of the use of cash (the “AML Law” ) with a few limited gold- plating measures. They apply to all types of reg - ulated entities providing their services in Belgium through a physical establishment. For now, the most important obstacle that the AML rules represent for regulated fintechs is the lack of full harmonisation at the EU level, which makes it complicated for international busi - nesses to comply with each of the local AML regimes, as well as the acquiring and retaining of the competent personnel holding an expertise both in terms of AML regulation and technologi - cal innovation. Concerning the sanction rules, Belgium is fully aligned with the regime imposed at the EU level and applies it directly. 2.15 Financial Action Task Force Standards The Belgian AML rules generally align with the Under the Belgian law of 21 November 2017 on markets in financial instruments (the “Investment Services Law” ), which implements EU Direc - tive 2014/65/EU of 15 May 2014 on markets in financial instruments ( “MiFID II” ), the licensing requirement for third-country investment firms does not apply when an EU-based client inde - pendently and exclusively initiates the provision of an investment service from a third-country firm. In such cases, the services are not consid - ered to be provided within Belgium. However, standards set by the FATF. 2.16 Reverse Solicitation
it is important to note that the FSMA regards reverse solicitation as an exceptional regime and explicitly states that it cannot serve as a busi - ness model to maintain or continue servicing an existing client base. 3. Robo-Advisers 3.1 Requirement for Different Business Models Depending on their scope, the services provided through robo-advisers qualify as order execu - tion, investment advice or portfolio manage - ment under the MiFID II and the Belgian Law of 2 August 2002 on the supervision of the finan - cial sector and financial services (the “Finan- cial Supervision Law” ). Therefore, companies offering robo-advisory services directly to Bel - gian investors should (i) be licensed as Belgian investment firms or CIs or (ii) be able to rely on the passporting of an EU member state invest - ment firm or CI licence to operate on the Belgian market. Belgian law provides for two types of investment firm licences: • portfolio management and investment advice companies supervised by the FSMA; and • stockbroking firms supervised by the NBB. Stockbroking firms can provide all investment services regulated under MiFID II. By contrast, portfolio management and investment advice companies may only provide the following ser - vices: reception and transmission of orders, order execution, portfolio management and investment advice services. Robo-advisers are sometimes also offered as pure IT technology tools (under a user licence
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