Crypto-Assets - FSMA Publishes Guidance On How To Classify Crypto-Assets

In its Communication the FSMA proposes a three step decision tree when classifying crypto-assets under Belgian law.

When compared with an earlier version of the Communication (which formed the basis for a consultation), the FSMA has highlighted that the decision tree is neutral as regards technology: the legal classification does not depend on the technology which is being used.

(1) Step 1: the starting point for the legal classification analysis is the question whether the crypto-asset is incorporated into an "instrument". This will generally be the case if the crypto-asset is exchangeable or fungible.

• If the crypto-asset is not incorporated into an instrument, then it cannot be classified as a security or an investment instrument, and the Regulation 2017/1129 (Prospectus Regulation), the Belgian law of 11 July 2018 (Prospectus Law) and the rules of conduct of Directive 2014/65/EU (MiFID2) do not apply.