Despite this, cryptocurrencies are increasingly attracting potential investors, particularly via mobile applications: 10% of Europeans hold them, according to a study recently published by the European Central Bank. It was therefore normal for legislators to seek to bring order to this market and it is now done: a new European Regulation – therefore directly applicable in the Member States – comes into force on December 30. Explanations.
1. What is the situation in Belgium currently?
Until now, “crypto” legislation was essentially national but piecemeal. Thus, in Belgium, with the exception of laws on the prevention of money laundering, only the FSMA, the financial markets watchdog, has acted in the field of crypto-assets: it adopted, in 2023, a regulation subjecting restrictive conditions for the marketing of virtual currencies to consumers. “This regulation only governs the content of advertisements promoting the purchase of cryptocurrencies in Belgium, in particular by requiring the warning “Virtual currency, real risks. In crypto only the risk is guaranteed” to be included in each advertisement. signal Pierre De Pauw, lawyer specializing in banking law and partner in the NautaDutilh firm. It also provides for an obligation to notify the FSMA in advance of advertisements broadcast as part of a mass campaign targeting the Belgian public..
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2. What will the European Regulation change?
The objective of the European Regulation called “MiCA” (Markets in Crypto-Assets”, Editor’s note) is to strengthen the protection of investors in crypto-asset markets, mainly from two angles.”On the one hand, by ensuring greater transparency and integrity of the markets (for example, by providing rules on market abuse making it possible to sanction insider trading). On the other hand, by subjecting crypto-asset service providers – companies which ensure the conservation of investors’ crypto portfolios and trading platforms – to an obligation to be approved by a regulator. An approval obviously conditional on compliance with strict requirements in terms of organization and financial solidity”explique Pierre De Pauw.
In Belgium, this regulator will, in principle, be the FSMA which will truly be at the center of the new system. Even if the MiCA Regulation also provides for a ‘European passport’ system allowing service providers to obtain their authorization in another Member State of the Union and then carry out their activities throughout the territory of the Union.
Concretely, “the MiCA Regulation will require the publication of a ‘White Paper’ providing investors with detailed information on cryptos and their issuers; service providers will have to respect rules ensuring the security of their IT systems; their shareholders and directors will have to meet requirements in terms of good repute and expertise; and providers will have to meet fund/equity requirements or take out insurance”underlines Pierre De Pauw.
3. Is this new system sufficient?
For Pierre De Pauw, the answer is clearly “yes”: “The rules included in the MiCA Regulation are inspired by existing legislation applicable to traditional financial markets and instruments, which are quite restrictive. This text still has 149 articles and 166 pages. It regulates the entire sector at European level, believes Pierre De Pauw, who nevertheless specifies: This Regulation really strengthens the protection of investors on a series of important points but it does not, of course, have the effect of making investments in crypto-assets devoid of all risk.”
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4. The big gap with the United States?
As for the risk of a big gap that could now exist between the United States – with the boost and deregulation promised by Donald Trump – and the European Union – keen to regulate this market more strictly – Pierre De Pauw minimizes it. instead. “It is difficult to anticipate at this stage the effect of the policies that will be implemented by the new Trump administration. But the fact that the rules are now harmonized within the Union is positive, because it favors the emergence of a real European market with identical rules of the game for all participants. Companies active in crypto do not necessarily take a dim view of the new regulations, because it forces them to professionalize and reinforces the confidence of potential investors in them.he concludes. The digital Wild West could therefore transform into opportunities for European operators.
