BELGIUM Law and Practice Contributed by: Joan Carette, Philippe De Prez and Thomas Derval, Simont Braun
11.2 Concerns Raised by Open Banking Certain concerns have been raised due to the open banking requirement, such as concerns about data protection risks, security measures and the risk of cyber-attacks on third-party appli - cations and/or APIs. These concerns have also raised the question of liability should something go wrong regarding any of the above aspects (liability of the PSP or of the relevant TPP). Regarding data privacy and data security con - cerns, it is generally agreed that PSD2 and GDPR are jointly applicable regulations. Furthermore, a high level of security of financial and operational systems has become a key element. Regulation has also placed some liability with the PISP, who are subject to an obligation to insure themselves. There is no specific criminal legislation on fraud in financial services. Most frauds within the financial sector fall under the definition of gener - ic offences, such as fraud within the definition of Article 496 of the Belgian Criminal Code. The constitutive elements of a fraud are threefold: (i) the intention to appropriate one’s belongings, (ii) the voluntary delivery of those belongings, (iii) which is induced by the use of false identities or fraudulent tactics. 12. Fraud 12.1 Elements of Fraud
Generally, victims of fraud press charges with the police but scammers and fraudsters are rare - ly identified, which leads many of them to bring civil claims against the financial institutions that were somewhat involved in the fraudulent trans- actions (eg, payer’s and payee’s institution(s)). 12.2 Areas of Regulatory Focus In general, the FSMA primarily focuses on author - ised-pushed payment fraud, tackling fraudulent investment offers or trading platforms, identity theft, boiler room scams, or fake credit offers. Additionally, nearly half of the reports to the FSMA involve online trading platforms, which give rise to the main type of investment fraud in Belgium. The FSMA, along with the FPS Economy, regu - larly launches campaigns to combat investment fraud. 12.3 Responsibility for Losses In Belgium, the responsibility of a fintech service provider for losses arising from fraud is primar - ily determined by compliance with PSD2 and whether negligence or misconduct can be dem - onstrated. Providers are required to authenticate transactions securely, ensure accurate process - ing, and prevent technical errors. Failure to meet these obligations, such as insufficient fraud detection or inadequate security measures, may result in liability.
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