BELGIUM Law and Practice Contributed by: Joan Carette, Philippe De Prez and Thomas Derval, Simont Braun
guidance on the most common cases where crypto-assets may classify as regulated securi - ties, investment instruments or financial instru - ments. While opinion remains divided on whether cryp - tocurrencies should be classified as financial or investment instruments, legal doctrine seems to prefer their qualification as a financial instru - ment as regards investment tokens, at least to the extent that a right is obtained by the issuer. MiCA covers all categories of crypto-assets that are not already subject to traditional EU regula - tion and introduces a prudential regime for both crypto-asset issuers and service providers. 10.4 Regulation of “Issuers” of Blockchain Assets Based on the aforementioned 2017 FSMA Com - munication and the 2022 FSMA Communication, the following (non-exhaustive) overview of pos - sible applicable regulations should be taken into account by issuers of blockchain assets. EU regulations: • EU Regulation 2017/1129 of 14 June 2017 on the prospectus to be published when securi - ties are offered to the public or admitted to trading on a regulated market (the “Prospec- tus Regulation” ) • MiFID II; • EU Directive 2011/61/EU of 8 June 2011 on Alternative Investment Fund Managers Alter - native Investment Fund Managers Directive (AIFMD); • MAR;
tial supervision of the business of electronic money institutions (EMD2); and • MiCA. Belgian regulations: • the FSMA Regulation of 3 April 2014; • the Royal Decree of 8 February 2022 on the status and the supervision of service provid - ers for the exchange of virtual currency and fiat currency and custodian wallet providers; and • the FSMA Regulation of 5 January 2023. • the New Prospectus Law; • the Crowdfunding Law; • the PI & EMI Law; This list serves only as provisional guidance and in no way constitutes the full legal framework on crypto-assets and it should be seen in light of the specific circumstances at hand. Finally, MiCA now provides a concrete legal framework for the issuance of crypto-assets that fall outside the scope of existing legislation, as well as for entities providing crypto-related services. With its entry into force, a common licensing regime applies for crypto-asset issuers and service providers across the EEA member states. 10.5 Regulation of Blockchain Asset Trading Platforms Since May 2022, cryptocurrency exchanges offering crypto/fiat conversion ( “virtual asset service providers” VASPs) have been required to register with the FSMA before offering their services in Belgium. This registration process goes beyond what is required under AMLD5, such as the verification of the competence of the persons in charge of the effective management, the requirement for holding a minimum capital
• AMLD4; • AMLD5;
• EU Directive 2009/110/EC of 16 September 2009 on the taking up, pursuit and pruden -
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