Since 30 December 2024, the European Markets in Crypto-Assets Regulation (MiCA) is directly applicable in all European Union member states, without needing to be transposed into national law.
The Regulation provides a framework for crypto-assets at European level and consists of rules covering mainly the offering to the public and the admission to trading of tokens, the provision of crypto-asset services by service providers, and the prevention of market abuse regarding crypto‑assets.
MiCA being directly applicable in Belgium, including with regard to the transitional period and to the provisions concerning the European passport, there is nothing to hinder the activity of crypto-asset service provider on Belgian territory, regardless of the designation of competent national authorities.
In accordance with the transitional period provided for, crypto-asset service providers (“CASPs”) that provided their services in accordance with the national law of an EU member state before 30 December 2024 may continue to do so in that member state until 1 July 2026 or until they are granted or refused an authorization, whichever is sooner.
As a reminder, in Belgium, the FSMA was unable to grant any registrations under the pre-MiCA national regime (Royal Decree of 8 February 2022), as no complete file attesting to an applicant's ability to comply with all the legal and regulatory conditions required to obtain such a registration had been submitted to it prior to expiry of that regime.
Crypto-asset service providers governed by the law of another European Union member state may continue their operations in Belgium during the transitional period on condition that:
- they were already active in Belgium on 30 December 2024 (without being established there);
- they are authorized to exercise such activities in Belgium in accordance with their national authorization (in their home country) and comply with all their legal and regulatory obligations under the supervision of the competent authority of their home member state.
At this stage, the entry into force of MiCA will not result in the interruption of services legally provided in Belgium before 30 December 2024. Indeed, customers may, if they wish, continue to use certain crypto-asset services via:
- entities already authorized in other European member states, including for such cross-border activities, and fulfilling the conditions of eligibility for the transitional period;
- the European passport provided for under MiCA, which enables any entity authorized under MiCA in another EU member state to operate throughout Europe, including Belgium. The principles of freedom of establishment and freedom to provide services enshrined in this European passport should apply irrespective of the designation of national competent authorities.
This new regulatory framework for crypto-assets is particularly useful for investor protection, as it establishes rules for crypto-assets for the first time.
However, the FSMA notes that, prior to 30 December 2024, there was a wide disparity between the approaches adopted by each country regarding the (national) authorization regime. As a result of this disparity, the FSMA is concerned that there may not be a “level playing field” among the various EU member states in terms of CASP supervision. The FSMA hopes that particular attention will be paid to any form of forum shopping, a phenomenon particularly present in the crypto-assets sector. In view of the above, the FSMA considers that the current framework for CASP activity supervision needs to be strengthened. To this end, the FSMA would support any initiative aimed at designating a supranational supervisory authority for this specific sector. Having developed outside a proper harmonized regulatory framework, with member states enjoying considerable autonomy, this sector presents significantly increased risks of divergence in the interpretation and application of standards. In such circumstances, there is a real danger that the usual convergence and cooperation mechanisms between competent authorities may not adequately mitigate these risks.
At the same time, the FSMA wishes to remind consumers of the risks involved in investing in crypto‑assets. Crypto‑assets have a number of specific characteristics that entail considerable risks. In particular, they are often subject to sudden price fluctuations, are vulnerable to fraud and are exposed to particular technical and IT risks. Crypto-assets are therefore a particularly risky investment, not suitable for 'ordinary' consumers, who could suffer significant losses.
More information on this subject can be found on the website of Wikifin (available in Dutch and French) and on ESMA’s website.
Finally, the FSMA informs consumers that, during the transitional period, the protection framework put in place by MiCA does not yet apply. This framework will apply once the entity has obtained its authorization and activated the European passport for Belgium. Furthermore, the FSMA Regulation imposing restrictive conditions on the distribution of virtual currencies to consumers remains applicable to entities making use of the transitional provision in Belgium.
In this section you will find laws and regulations, circulars, communications and other information useful to Crypto Asset Service Provider (CASP).
