Bitcoin and Ether Are Not Securities, Says Belgium’s Financial Regulatory Agency FSMA

Belgium’s financial regulator, the Financial Services and Markets Authority (FSMA), has clarified its position on the status of cryptocurrencies like Bitcoin and Ether, stating that crypto assets without an issuer are issued solely by computer code, do not constitute securities. The Belgian government’s position is that cryptocurrencies are more similar to commodities, and thus should not be subject to the same regulations as securities. The clarification comes amid an increase in demands for answers as to how Belgium’s existing financial laws and regulations apply to digital assets, according to the FSMA.

“If there is no issuer, as in cases where instruments are created by a computer code and this is not done in execution of an agreement between issuer and investor (for example, Bitcoin or Ether), then in principle the Prospectus Regulation, the Prospectus Law and the MiFID rules of conduct do not apply,” the FSMA provided the rationale in a report released on November 22.

Furthermore, the Authority also stated that, “Nevertheless, if the instruments have a payment or exchange function, other regulations may apply to the instruments or the persons who provide certain services relating to those instruments.”

In addition, FSMA stressed that their stepwise plan is technology-agnostic, implying that it makes no difference whether digital assets exist and are supported via blockchain or by more conventional ways.

The FSMA originally developed the report in July 2022 in order to respond to commonly asked questions from Belgian digital asset issuers and service providers.

The European Parliament’s Markets in Crypto Assets Regulation (MiCA) is anticipated to go into force at the beginning of 2024, and FSMA claimed that the stepwise plan will serve as a guide until then.

The ruling provides much-needed guidance on how digital assets will be treated under Belgian law. It is hoped that this ruling will paved the way for greater clarity and certainty in other jurisdictions when it comes to the regulatory treatment of digital assets.