01/05/2022
1. Targeted crypto providers
On May 1, the Royal Decree comes into force requiring registration with the FSMA for the following crypto-asset service providers (known as “VASPs” - Virtual Asset Service Providers):
· Providers of exchange services between crypto-currencies and legal currencies;
· Private cryptographic key storage wallet service providers (“wallet providers”);
Providers of crypto-asset ATM machines (hereinafter referred to as “ATM machines”);
Conversely, issuers of crypto-assets[1] or providers of exchange services between crypto-currencies are not required to register. In addition, provided that they are not responsible for the services provided on the ATM machines, the following are also not covered:
· The operators of the premises where the ATM machines are installed;
· ATM machine maintenance technical service providers.
We also remind you that it is prohibited to deploy, in Belgium, exchange services between crypto-currencies and legal tenders to the following service providers:
Service providers subject to the law of a third country to the European Economic Area;
· Individuals.
If you are in one of these cases and you carry out or intend to carry out in Belgium the activities described above, it is imperative that you set up a business in Belgium and submit a registration application to the FSMA.
2. Overview of conditions
To apply for registration with the FSMA as a VASP, you must be a company governed by the law of a Member State of the European Economic Area.
If the company is Belgian, it must take one of the social forms listed by law (from which the SRL is excluded) and have a fully paid-up capital of at least €50,000.
If the company comes from another Member State of the EEA, it must establish its central administration in Belgium (where the company will be effectively managed and where the supporting documents will be made available to the FSMA).
o If the foreign service provider has ATM machines on Belgian territory, it must designate a central point of contact in Belgium (this will be the person who will ensure compliance with the anti-money laundering law)
The managers of the company must also demonstrate the expertise and professional integrity appropriate to the performance of their duties.
The FSMA is also particularly attentive to compliance with the Belgian anti-money laundering law by the applicant company.
3. Costs
Registration with the FSMA entails:
A one-time fee of €8,000 per status for examining the application for registration – whether the application is accepted or refused;
An annual contribution of €8,000 per status once registration has been confirmed.
4. Penalties
Failure to register with the FSMA is punishable by a criminal fine of €50 to €10,000.
The deployment of illegal activities by your company also carries the risk that it appears on the “black list” of fraudulent companies published by the FSMA.
5. Deadlines
The legislator has granted service providers a period of time to prepare their application file: they will be able to temporarily continue their activities after 1 May, while the FSMA examines their application for registration. To benefit from this provisional authorization, they must
1) notify the FSMA of the exercise of their activity by 1 July 2022;
2) and submit their complete registration application file to the FSMA by 1 September 2022.
We assist you in compiling your application file for the FSMA and in the procedures for your registration with the FSMA. You can consult us for a more detailed description of the conditions to be met and the documents required.
Anna Susarova
Partner
Marie-Ferret
Lawyer specializing in technology law
[1] i.e. a legal entity that offers any type of crypto-assets to the public or requests the admission of these crypto-assets to a crypto-asset trading platform (Article 3 of the MiCA Regulation )
