Crypto-assets in Europe are no longer regulated by analogy with existing financial law. The Markets in Crypto-Assets Regulation, known as MiCA, created a dedicated European regime, and its rules for crypto-asset service providers have applied since the end of December 2024. The result is that offering crypto services in the European Union now requires a licence rather than a registration, and a licence obtained in one member state can be passported across the others.
For the Netherlands this replaced the earlier position, under which providers of exchange and custodian wallet services registered with De Nederlandsche Bank purely for anti-money-laundering supervision, without any prudential or conduct authorisation.
What MiCA covers
The Regulation distinguishes three categories of crypto-asset: asset-referenced tokens, which reference a basket of values; e-money tokens, which reference a single official currency; and other crypto-assets, which is where most tokens fall. Issuers of the first two categories are subject to authorisation and to reserve and redemption requirements; issuers of others must publish a white paper meeting prescribed content requirements and are liable for its accuracy.
Service providers – exchanges, custodians, trading platforms, brokers, portfolio managers, advisers – require authorisation as a crypto-asset service provider, with requirements on governance, own funds, custody and segregation of client assets, complaint handling, conflicts of interest and outsourcing. MiCA also introduced a market abuse regime for crypto, covering insider dealing, unlawful disclosure and market manipulation.
What MiCA does not cover is equally important: crypto-assets that qualify as financial instruments remain under the existing financial markets legislation, and fully decentralised arrangements without an identifiable service provider fall outside it.
Anti-money-laundering obligations
Crypto service providers are obliged entities under the anti-money-laundering framework: client due diligence, monitoring, and reporting unusual transactions. Alongside that, the transfer of funds regulation extends the travel rule to crypto transfers, requiring originator and beneficiary information to accompany a transaction, including in dealings with self-hosted wallets under defined conditions.
The position of the holder
Under Dutch law a crypto-asset is treated as an object of property that can be owned, transferred, attached and inherited. That has practical consequences: crypto falls within the assets to be divided on a divorce, forms part of an estate, can be seized in enforcement, and must be declared for tax purposes as an asset. Access is the recurring problem in each of these situations – assets whose keys are lost are, in practice, gone, whatever the legal position.
Practical points for businesses
Three questions decide most matters. Does what you offer amount to a crypto-asset service requiring authorisation, or does it fall outside the definitions? If a token is issued, which category does it fall into, and what does that require by way of a white paper or authorisation? And are your anti-money-laundering procedures capable of meeting the travel rule in practice rather than on paper?
Advice
Our lawyers advise on licensing and classification questions, on token documentation, on anti-money-laundering compliance, and on disputes about crypto-assets including recovery and attachment. Please contact Law & More.
