Crypto-asset businesses in the Netherlands and the rest of the EU are regulated under the Markets in Crypto-Assets Regulation (MiCA), not by analogy with existing financial law. Since MiCA’s rules for crypto-asset service providers took effect, offering crypto services in the EU 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 (DNB) purely for anti-money-laundering supervision, without any prudential or conduct authorisation.
What does MiCA cover?
MiCA 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, the category most tokens fall into.
Issuers of asset-referenced and e-money tokens need authorisation and must meet reserve and redemption requirements. Issuers of other crypto-assets must publish a white paper that meets prescribed content requirements, and they are liable for its accuracy.
Service providers – exchanges, custodians, trading platforms, brokers, portfolio managers, advisers – need authorisation as a crypto-asset service provider. That authorisation brings 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 matters just as much: crypto-assets that qualify as financial instruments stay under the existing financial markets legislation, and fully decentralised arrangements without an identifiable service provider fall outside MiCA.
What anti-money-laundering rules apply?
Crypto service providers are obliged entities under the anti-money-laundering framework: you must carry out client due diligence, monitor transactions and report unusual ones.
The Transfer of Funds Regulation extends the travel rule to crypto transfers: originator and beneficiary information must accompany a transaction, including, under defined conditions, transfers involving self-hosted wallets.
How does Dutch law treat the crypto-assets you hold?
Dutch law treats a crypto-asset as an object of property that can be owned, transferred, attached and inherited. That has practical consequences: crypto counts among the assets divided on a divorce, forms part of an estate, can be seized in enforcement, and must be declared for tax purposes.
Access is the recurring problem in each of these situations: assets whose keys are lost are, in practice, gone, whatever the legal position.
What should you check as a business?
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 you issue a token, which category does it fall into, and what does that require by way of a white paper or authorisation? And can your anti-money-laundering procedures meet the travel rule in practice, not just on paper?
Summary
- Crypto-asset services in the EU need a MiCA licence, passportable across member states.
- Token issuers face different requirements depending on whether they issue asset-referenced tokens, e-money tokens or other crypto-assets.
- Crypto service providers remain subject to anti-money-laundering duties and the travel rule.
- Dutch law treats crypto-assets as property: they feature in divorces, estates, tax returns and enforcement.
- Lost keys, not the legal framework, are usually what puts a crypto-asset out of reach.
Our lawyers advise on licensing and classification questions, token documentation, anti-money-laundering compliance, and disputes about crypto-assets, including recovery and attachment.
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