Crypto-assets are currently the subject of much interest. It is thus not surprising that the FSMA regularly receives questions about the classification of such assets.
The FSMA has therefore drawn up a Communication on the classification of crypto-assets as securities, investment instruments or financial instruments.
With this Communication, the FSMA wishes to provide clarity, while awaiting a harmonized European approach[1], about when crypto-assets may be considered to be securities, investment instruments or financial instruments, and whether they may fall within the scope of the prospectus legislation and/or the MiFID conduct of business rules.
The Communication and the stepwise plan attached are intended to help issuers, offerors and service providers carry out the exercise of classifying crypto-assets within the applicable legal framework that was not drawn up specifically for these types of instruments.
The FSMA focuses to this end on the basic questions and the situations which it has encountered most frequently to date. This means that it does not address all potential classifications and that the stepwise plan is likely to evolve over time.
The stepwise plan is not intended, in any case, to replace a thorough analysis of all specific characteristics and presentation of the product in the light of the applicable rules. Moreover, it is best not to rely solely on the name of a product when deciding how to classify it. The label does not always match the content.
The FSMA is holding an open consultation on the Communication. It will run from 05/07/2022 to 31/07/2022. The consultation is addressed to all players in the financial sector and to investors’ representatives. Responses can be submitted to the email address consult1@fsma.be.
[1] Proposal by the European Commission of 24 September 2020 for a Regulation of the European Parliament and of the Council on Markets in Crypto-assets, and amending Directive (EU) 2019/1937.