Belgium Regulation on Virtual Currency
i Virtual currencies
Virtual currencies are defined by the European Central Bank (ECB) as 'a digital representation of value, not issued by a central bank, credit institution or e-money institution, which, in some circumstances, can be used as an alternative to money'. It clarifies that even though they can be used as an alternative to money, virtual currencies are not money or legal tender from a legal perspective, in contrast to electronic money. This means that nobody is obliged to accept payments in virtual currencies.
The ECB provides further clarification by proposing three subcategories of virtual currencies that are classified according to their interaction with legal tender (or similar instruments) and on their ability to be used to purchase tangible goods and services. These three subcategories are:
Closed virtual currencies schemes: these are virtual currencies that have no interaction with the physical world. They cannot be obtained using legal tender (or similar instruments), nor can they be exchanged back into legal tender, and they cannot be used for purchasing goods and services in the physical economy. An example given by the ECB is World of Warcraft (WoW) gold, an in-game virtual currency that WoW players can use to better equip their avatars to reach higher levels in the game.
Virtual currencies schemes with unidirectional flow: these are virtual currencies that can be purchased using fiat currency but cannot be converted back into fiat currency. Examples are Facebook credits or air miles in frequent flyer programmes.
Virtual currencies schemes with bidirectional flow: these are virtual currencies that users can buy and sell according to an exchange rate with fiat currency, and that can be used to purchase physical goods and services. The most notable example of bidirectional virtual currencies are cryptocurrencies, which form the main subject of this chapter.
ii Cryptocurrencies and tokens
Although Bitcoin is still by far the most well-known cryptocurrency with the highest market capitalisation, altcoins have emerged in the past few years, and they are bringing innovation to the first-generation Bitcoin protocol. One well-known example is Ether, the cryptocurrency for operating the distributed application platform Ethereum, an open-source, blockchain technology-based software platform that runs smart contracts. Ether has many uses; it provides software developers with incentives to write smart contracts and compensates them for their attributed resources; it can be used for executing smart contracts and for paying for goods and services on the Ethereum network. Ethereum, as a platform, is further used to develop other cryptocurrencies and tokens (i.e., ERC20 tokens) through initial coin offerings (ICOs) (see Section VII).
Recent years have shown the incredible potential of virtual currencies and tokens. Just as every new technology does, virtual currencies face obstacles and uncertainties that affect their market price substantially. As discussed in this chapter, the uncertainty about the legal framework that applies to virtual currencies and tokens is still a major hindrance to their development and adoption in the market.
Securities and investment laws
i Financial market regulators
The financial market in Belgium is regulated by two autonomous supervisory bodies, namely the Financial Services and Markets Authority (FSMA) and the National Bank of Belgium (NBB). The FSMA and NBB are in charge of supervising and monitoring companies operating in the Belgian financial market, and they each have clearly defined roles.
The FSMA notably protects the interests of Belgian financial consumers, and is responsible for supervising financial products, financial information published by companies and financial service providers. In the context of virtual currencies, the FSMA 'warns consumers of the risks that using and holding virtual currencies entail'.
The NBB is notably responsible for overseeing individual financial institutions (e.g., credit institutions, investment firms, payment institutions, electronic money institutions, insurance companies) and the proper functioning of the financial system as a whole.
ii Regulatory framework governing financial markets
As there is no virtual currency-specific legislation on securities and investments in Belgium, the existing legal framework that applies to securities and investments is reviewed hereunder. This framework governs financial instruments, investment instruments and financial products and may potentially apply to virtual currencies and its market participants.
Regulatory framework governing financial instruments and investment services
The Belgian legislation on financial instruments consists of the Act of 21 November 2017 regarding the infrastructures of the market for financial instruments, which transposes Directive 2014/65 into national law (the Act on Financial Instruments), and the Act of 25 October 2016 on access to investment services companies, and on the legal status and supervision of portfolio management and investment advice companies (the Act on Investment Services). The Act on Financial Instruments and the Act on Investment Services are the national laws implementing the second Markets in Financial Instruments Directive (MiFID II). This MiFID-based legal framework aims to foster investor protection and to cope with new trading technologies, practices and activities.
Virtual currencies as financial instruments
MiFID II and the above-mentioned Acts implementing it apply to certain types of entities (such as investment firms or credit institutions) that offer investment services and activities relating to financial instruments. The core of this legislation revolves around the notion of financial instruments. The term financial instruments covers a wide range of instruments, including transferable securities and derivative products.
It is essential for market participants to assess whether virtual currencies fall under the concept of financial instrument. For this assessment, the distinction made in Section I.i between unidirectional scheme virtual currencies and bidirectional scheme virtual currencies is relevant. The first two categories of virtual currencies, namely the closed and unidirectional scheme ones, should not be considered financial instruments. Closed scheme virtual currencies cannot be obtained using legal tender, and unidirectional scheme virtual currencies, although they can be obtained using legal tender, cannot be converted back into legal tender or similar instruments. Their (limited) transferability does not qualify them as investment.
The situation for bidirectional scheme virtual currencies is less straightforward because not all virtual currencies that fall in this category have the same characteristics. Below, we distinguish the three different characteristics of bidirectional scheme virtual currencies. They are used:
as a means of payment (coins or cryptocurrencies, allowing the owner to use them to pay for certain goods and services that are purchased on the internet (e.g., using Bitcoin to make an online purchase of a wellness session or appointment));
as a means of investment (investment tokens, granting the owner an economic interest in the company behind the token, linked to the performance of the company); or
for a utilitarian purpose (utility tokens, granting the owner access to certain goods or services that are offered on the platform of the issuer).
In some specific cases, a token can even have a hybrid function: for example, Ether can be used in many ways on the Ethereum network, but it also functions as a means of payment for buying other tokens in the process of ICOs.
If a bidirectional scheme virtual currency constitutes a means of payment only or has only a utility function, it seems unlikely that it can be considered a financial instrument under Belgian law. Cryptocurrencies and utility tokens are not included in the list of financial instruments in the Act on Financial Instruments, nor do they seem to fall under the scope of transferable securities, as they do not represent a certain right on the company that issued the token. However, the problem with cryptocurrencies and utility tokens is that apart from their principal use, they are being traded on virtual currency exchanges, and fluctuate in price just as other virtual currencies do, and therefore also seem to have some investment function. This can be illustrated by Siacoin.
Siacoin is a utility token that can be used on the Sia storage platform, a decentralised storage platform that:
leverages under-utilised hard drive capacity around the world to create a data storage marketplace;
allows users to obtain Siacoins when they make their laptops' hardware available for the benefit of the platform; and
allows users to store files by paying Siacoins in return.
Siacoin is considered by its issuer as well as the community to be a utility token, but a person that bought US$1,000 of Siacoins on 7 January 2016 at a rate of US$0.000017 (to obtain roughly 59 million Siacoin tokens) and sold that same amount of utility tokens four years later on 7 January 2020 at US$0.00139 would have made approximately US$81.010 in profit in just four years. Even if the primary purpose of Siacoin is utilitarian, it has been functioning in practice as a means of investment.
Apart from this example, it is undeniable that certain bidirectional-scheme virtual currencies can serve primarily as investments, especially if the currency is issued by a private company in the framework of an ICO and has characteristics that entitle investors to a share in the profits of the blockchain-based company that issues the virtual currency, and that carry voting rights or give rights to some kind of interest revenue. In these scenarios, the tokens convey a certain right to the issuer (as do transferable securities), and their value is linked to the success of the company's business. Therefore, virtual currencies with these characteristics could be considered a financial instrument under Belgian law.
Obligations under the Act on Financial Instruments and the Act on Investment Services
If bidirectional scheme virtual currencies were considered financial instruments under Belgian law, virtual currency market participants providing investment services and activities relating to virtual currencies would have to comply with certain obligations on transparency or licensing, or both, that are imposed by the above-mentioned financial legislation, which includes obligations regarding rules of conduct: to act in an honest, fair and professional way that best serves the customer's interest; to provide customers with information that is clear, fair and not misleading; and to offer services specifically tailored to the customer's situation.
The regulatory framework governing investment instruments
The legal framework governing investment instruments consists of the Prospectus Act of 2018 (the Prospectus Act). The Prospectus Act requires that a prospectus for a public offer of investment instruments be drafted. A list of such instruments can be found in Article 3(1) of the Prospectus Act. Its scope of application is very broad because investment instruments cover a catch-all category of 'all other instruments that enable carrying out a financial investment, regardless of the underlying assets'. Because virtual currencies are all traded on exchange platforms, and because their highly volatile nature leads to market speculation, it could be argued that bidirectional scheme virtual currencies would all fall under the scope of investment instrument within the meaning given to the term under the Prospectus Act. Hence, companies offering these virtual currencies to the public and certain intermediaries that act on their behalf would have to comply with the prospectus requirement under certain circumstances.
FSMA guidance and FSMA regulation on financial products
The FSMA has taken a rather neutral approach to virtual currencies, putting the onus on market participants to self-assess whether a given virtual currency would fall under the above-mentioned financial legislation. The FSMA mentions that this assessment should be based on the specific characteristics of the virtual currency, and states that the regulatory status of virtual currencies is to be assessed on a case-by-case basis.
Apart from the neutral stance of the FSMA in relation to virtual currencies and the absence of any virtual currency-specific legislation in Belgium, the FSMA has adopted a regulation that applies to financial products (which are to be considered a subsection of financial instruments as discussed earlier). This regulation prohibits the 'distribution, in Belgium, as a professional activity, to one or several retail customers of a financial product whose return depends directly or indirectly on a virtual money'.32 This ban on the distribution of financial products, which are defined as savings, investment or insurance products, applies to virtual money, which is, in its turn, defined as 'any form of unregulated digital currency that is not legal tender'. This ban would apply to derivatives if return depends directly or indirectly on a virtual currency. This would mean, for example, that exchange-traded funds (ETFs), which would invest the money of investors in virtual currencies, would be banned from offering their services in Belgium. This is highly topical considering the multiple requests for virtual currency ETFs that have consistently been rejected by the United States Securities and Exchange Commission (SEC).
In the explanatory note accompanying the regulation, the FSMA describes various risks associated with virtual money, from hacking of trade platforms to lack of authority supervision and price volatility. The FSMA also describes several dishonest practices that have been identified in relation to derivative cryptocurrency products where the distribution of such derivative financial products to consumers has led to significant losses to the investors in question. This clearly indicates that the FSMA intends to use this regulation to protect small retail customers and investors against these very complicated financial products.
Banking and money transmission
i Electronic money directive
The Act of 11 March 2018 regarding, inter alia, the emission of electronic money (e-money) (the E-money Act), which is the Belgian law implementing the provisions of the E-money Directive, aims to facilitate the emergence of new, innovative and secure e-money services as well as to encourage effective competition between all market participants.
The E-money Act defines e-money as 'electronically, including magnetically, stored monetary value as represented by a claim on the issuer which is issued upon receipt of funds for the purpose of making payment transactions, and that is accepted by a natural or legal person other than the electronic money issuer'. Only bidirectional scheme virtual currencies might have some resemblances to this definition of e-money, that is, they are both stored electronically and some virtual currencies are accepted as a means of payment by other parties than the e-money issuer. However, virtual currencies should not be considered e-money under the E-money Act. The main argument supporting this is that virtual currencies are not issued upon receipt of funds because a virtual currency is created digitally. The requirement that e-money needs to be issued upon receipt of funds means that the e-money issuer cannot just create new e-money units, because only central banks have a monopoly over money creation. However, this is just what a virtual currency issuer does: digitally creating a certain amount of virtual currencies through software development. In addition, virtual currencies usually do not create a claim on the issuer, with the exception of certain bidirectional scheme virtual currencies that could be considered to be a means of investment. Finally, it is also apparent from the few Belgian laws that refer to virtual currencies (including the AML Act discussed in Section IV) that a distinction is made between electronic money and virtual currencies. While clarification from the Belgian authorities on this point would be welcome, it does not seem that these definitions can overlap. Consequently, virtual currencies likely fall outside the scope of the Belgian legal framework concerning electronic money.
ii Payment service directive
Payment services are regulated at EU level by the Payment Services Directive II (PSD II), which has been transposed into Belgian law through the adoption of the Act of 11 March 201845 (the Payment Services Act). PSD II and the Payment Services Act aim to govern payment services and payment service providers, and to harmonise consumer protection and the rights and obligations for payment providers and users.
Although the Payment Services Act does not regulate the emission of virtual currencies per se, the question arises of whether certain virtual currency market participants provide services that could be considered payment services, and whether these participants can be seen as part of a certain limited number of payments service providers that have a monopoly over the provision of such services in Belgium. If so, a licence needs to be obtained from the NBB before any payment service provider can offer payment services in Belgium to consumers.
The Payment Services Act defines payment services as any payment service set out in Annex I, which lists eight different payment services, including the execution of payment transactions, money remittance, payment initiation services and account information services. This definition seems very broad, but this broadness is mitigated by several exemptions in Article 3 of the Payment Services Act. For example, according to the limited network exemption, services based on a payment instrument 'allowing the holder to acquire goods or services only in the premises of the issuer' or 'that can be used only to acquire a very limited range of goods or services' fall outside the scope of the Payment Services Act.
Based on this latter exemption, closed scheme virtual currencies and (most) unidirectional scheme virtual currencies can be excluded directly based on their (absence of or limited) transferability. This exemption could even apply to certain bidirectional scheme virtual currencies if their use is limited according what is described above. Whether virtual currency service providers will fall within the scope of the Payment Services Act will have to be assessed on a case-by-case basis taking into account the factual circumstances of each case.
Anti-money laundering
At the EU level, the Fourth Anti-Money Laundering Directive (AMLD4), transposed into Belgian law through the adoption of the Act of 18 September 2017 on the prevention of money laundering and terrorism funding (the AML Act), aims to intensify efforts to effectively combat money laundering and terrorism financing. It does so by imposing certain risk assessment obligations and obligations to identify customers (know your customer (KYC)), and putting in place transaction monitoring procedures for obliged entities (i.e., certain financial and credit institutions as well as certain legal entities and natural persons in the exercise of their professional activities).
The AML Act applies to goods and property derived from criminal activity and to funds used in terrorism financing. Although virtual currencies could be seen as both goods or property and funds, the AML Act only imposes reporting obligations on obliged entities. These types of entities are listed exhaustively. Since August 2020, two categories of virtual currency market participant have been included in this list (i.e., the 'providers of exchange services between virtual currencies and legal currencies established on Belgian territory and referred to in the decree adopted pursuant to paragraph 2 of this paragraph' and 'the providers of custody portfolio services established on Belgian territory and referred to in the decree adopted in implementation of paragraph 2 of this paragraph'). The 'providers of custody portfolio services' are further defined as 'entit[ies] providing private cryptographic key holding services on behalf of [their] clients for the purpose of holding, storing and transferring virtual currencies'. The AML Act foresees that a Royal Decree will fix the conditions under which these market participants will need to register with the FSMA and the conditions applicable to the exercise of their activities and the control thereof. The Royal Decree is currently in preparation.
This legislation will provide more transparency in the market and will discourage illegal activity to some extent. However, it is likely that numerous ways to hold, store and transfer virtual currencies will not fall under the scope of this legislation, meaning that virtual currency holders will not always be subject to the KYC or transaction monitoring procedures conducted by the new obliged entities under AMLD5.
Regulation of exchanges
Virtual currency exchanges play a key role. They offer exchange services to users, and allow them to acquire virtual currencies with fiat money or other virtual currencies. With the exception of the AML Act discussed above, no specific legislation exists that regulates the business activities of a virtual currency exchange. The Act on Financial Instruments and the Act on Investment Services are two laws of general application that would apply to bidirectional scheme virtual currency exchanges if virtual currencies were to be considered as financial instruments. The fact that the virtual currency exchange Blocktrade.com sought approval from the European Financial Market Authority under MiFID II seems to indicate that some exchanges do consider that they are subject to financial legislation.
Regulation of miners
Miners also play an important role in virtual currency networks. The core activity of miners is validating virtual currency transactions by solving a cryptographic puzzle for which they use specialised mining hardware. In return for this, or as a reward, they get a sum of newly mined virtual currencies. In some cases, miners can earn additional transaction fees from users that require faster confirmation of a transaction.
There is no specific Belgian legislation that regulates miners' activities. Nevertheless, any natural person or legal entity that earns money through mining activities could still be subject to Belgian tax law, and might have to pay personal or corporate income taxes.
Regulation of issuers and sponsors
i Initial coin offerings, initial token offerings and token generating events
In the first quarter of 2018, more than US$6.3 billion was invested in virtual currency companies worldwide via the sale of crypto instruments and digital tokens. Throughout the first 10 months of 2019, more than 380 virtual currency projects managed to raise another US$4.1 billion. These public sales have different names and are referred to as ICOs, initial token offerings and token generating events. For the sake of this chapter, and taking into account the wide adoption of the term ICO, we will collectively refer to the different kinds of public sales of crypto instruments as ICOs.
According to the FSMA, ICOs are operations through which 'project developers offer digital tokens to the public via the internet as a way of funding the development of the project'. Although ICOs resemble initial public offerings and crowdfunding campaigns to a considerable degree, ICOs are still largely unregulated and are often carried out by companies without any proven track record or a viable product, which makes them risky investments.
The success of virtual currency companies in Belgium is very relative compared to other jurisdictions such as Switzerland or Germany. To date, there has not yet been an ICO conducted out of Belgium, although the increase in ICO activity and in virtual currency awareness will certainly affect Belgium in the coming years.
ii Regulatory framework in Belgium that applies to ICO issuers
At present, there is no specific legislation aimed at ICOs, so there are no ICO-specific regulatory requirements for companies that are planning a token sale in Belgium. However, existing legislation might apply to ICOs. As mentioned in Section II, financial legislation might apply to certain bidirectional scheme virtual currencies, depending on the specific characteristics of the virtual currencies issued (i.e., whether they are a means of payment, investment or utility). This is the current stance of the FSMA, and also that of other financial market authorities throughout the world.
On 13 November 2017, the FSMA issued a communication on ICOs in which it warned ICO issuers that their operations might fall under the scope of application of various EU and Belgian legislation.67 This communication makes clear the FSMA's cautious position regarding the applicable legal framework on ICOs in Belgium. The FSMA did not want to exclude any law a priori.
At first sight, not all Belgian laws to which the FSMA refers in its communication seem inapplicable to ICO issuers. For example, ICO issuers fall outside the scope of application of the AML Act, despite the Belgian legislature's adoption of the AMLD5 amendments that consider (only) virtual currency exchange platforms and custodian wallet providers to be obliged entities. In addition, it is not clear how ICO issuers would fall within the scope of the Belgian Crowdfunding Act, as this Act applies to crowdfunding service providers that organise alternative investments via an alternative investment platform. Under the existing law, these alternative investments are defined as 'the service consisting of marketing investment instruments via a website or any other electronic means issued by corporate issuers'.
In conclusion, it seems that the principal legislation that ICO issuers should comply with when launching a virtual currency that could be considered an investment instrument on the Belgian market is the Prospectus Act. Under the current Prospectus Act, a prospectus must be drafted for every public offer of investment instruments having a total value of €5 million or more. This prospectus document must be approved by the FSMA before it is made available to the public. Both the form and the contents of the prospectus are regulated. It should notably include a 'short description of the risks related to the investment concerned and the essential characteristics of this investment, including all rights attached to securities' and 'the reasons behind the offer and the intended use of the funds collected'.
Criminal and civil fraud and enforcement
Virtual currencies are susceptible to misuse as part of criminal activities, and the exponential increase in the value of virtual currencies has not gone unnoticed by cybercriminals. In Belgium alone, there were more than 300 cases of Bitcoin-related scams or thefts during 2017, a number that was surpassed in the first five months of 2018 with more than 329 complaints. In 2019, Belgians supposedly lost €3 million as a consequence of Bitcoin-related scams, although this figure is largely dismissed as it only covers cases that have been reported. Criminal activity, specifically against virtual currency users, can happen on virtual currency exchanges, during virtual currency transactions or when merely holding virtual currencies in a user's wallet. Additionally, the certain degree of anonymity offered by virtual currencies makes them attractive for transferring illegally obtained funds.
To date, no specific criminal legislation concerning virtual currencies has been adopted in Belgium. Unlike other jurisdictions, the legal use of those currencies is not prohibited in Belgium.79 Nevertheless, certain illegal use of virtual currencies or illegal activity relating to virtual currencies falls under the scope of Belgian criminal law or specific legislation in relation to computer-related infractions (see Section VIII.ii).
i General provisions of Belgian criminal law
Under the general Belgian law provisions, there are at least three criminal infractions that could apply to illegal activity relating to virtual currencies.
The first criminal offence is common theft, which is covered by Article 461 of the Belgian Criminal Code, which states that 'anyone who fraudulently appropriates anything that does not belong to him is guilty of theft'. Theft of virtual currencies, just as theft of any other form of asset or good, is punishable by prison sentences of up to five years and a fine of up to €4,000.81 However, controversies exist in Belgium as to whether intangible objects (such as data – and virtual currencies are fundamentally data) can be the object of theft.
The second criminal offence is a scam as prohibited under Article 496 of the Criminal Code, which could also be very relevant with respect to virtual currencies. A scammer is defined as a person who:
with the intention of appropriating property belonging to another person, takes or receives money, movable property, commitments, discharges, debt liberations . . . either by the use of false names or false capacities or by the use of cunning tricks to make one believe that false companies of an imaginary power or of an imaginary credit exist, to expect or cause a successful outcome, an accident or any other mysterious event, or to otherwise abuse trust or credulity.
This description covers a wide range of situations that could apply to the rigged sale of virtual currencies, and to fake trading platforms and virtual currency exchanges. As an example of this wide coverage, the FSMA, following numerous complaints from Belgian citizens, publishes on its website – and regularly updates – a blacklist of virtual currency trading platforms that are suspected of scamming people into investing money for virtual currencies via an exchange. In many cases, these are platforms where people invest money in virtual currencies but never receive the currencies or a refund. Another form of scam could be a fraudulent ICO involving a natural person or legal entity that convinces investors to buy tokens, which happen to be fake, and the person or entity suddenly disappears with the investors' money.
Scams in relation to virtual currencies, just as any other form of asset, are punishable by a prison sentence of up to five years and a fine of up to €24,000.83
The third criminal offence relates to money laundering as prohibited under Article 505 of the Criminal Code. This provision states notably that a penalty of 15 days' to five years' imprisonment or a fine of €26 to €100,000 (or both) shall be imposed on 'those who will have bought, received in exchange for free, possessed, kept, managed the goods referred to in Article 42,3° [pecuniary benefits directly derived from a crime, or the goods and value that have been substituted for them and income from benefits invested] while they knew or should have known the origin of those goods at the beginning of those operations' as well as 'those who will have converted or transferred goods referred to in Article 42.3°, with the aim of concealing or disguising their illicit origin or to help any person entangled in a crime from where those goods stem from, to escape the legal consequences of their actions'.
A recent example of a virtual currency-related criminal investigation in Belgium involving Belgian citizens concerns the social media platform 'Vitae'. Five individuals behind the company – including Belgian citizens – were charged with membership of a criminal organisation, scamming and money laundering. Vitae presented itself as a new social media platform based on blockchain technology, where people could earn money with 'valuable posts' and by including other people in their 'downline', who in turn were financially incentivised to add other new users. According to the Belgian investigators, this was a Ponzi or pyramid scheme. The investigators allege that the main intention of Vitae was to lure more and more investments with empty promises of extra profits or 'upgrades' and online products, such as translation systems or games, which did not exist. The social media platform has already been taken offline. Those who still navigate to it are met with a 'STOP' page generated by the Belgian Justice Department and the Federal Police.
Given the advantages that virtual currencies (notably their relative anonymity) represent for criminals in conducting their illegal activities, Article 505, and the seizures of assets it can lead to, is one of the most useful provision of the Criminal Code to fight illegal uses of those currencies. In the case of Vitae, the Belgian investigating judge has already confiscated 37 per cent of the Vitae virtual currency. More than €1.1 million in ordinary money and almost €1.5 million in virtual coins were also seized. Detectives were also able confiscate 17 luxury vehicles, a series of luxury watches and gold.
ii Specific legislation regarding computer-related infractions
The Belgian legislature enacted specific pieces of legislation regarding computer-related infractions that are actually more suitable for prosecuting any criminal activity involving virtual currencies.
First, the infraction known as unauthorised access to computer systems (also known as hacking) can apply if a person accesses a computer system and he or she knows that the access was unauthorised. Hacking is punishable under criminal law by a prison sentence of up to two years and a fine of up to €200,000.
Second, the hacker might commit the infraction known as concealment of data88 at the same time if he or she processes or transfers data that was stored on a third-party computer system or that was treated or transmitted by the third-party computer system. Concealment of data under Belgian law is punishable by prison sentence up to two years and a fine of up to €200,000.89
A third infraction under Belgian law is computer-related fraud, which applies to anyone who, with fraudulent intent, obtains an unfair economic advantage while altering, changing or deleting data that is stored on or transmitted by a computer system. Computer-related fraud is punishable under Belgian law by a prison sentence of up to five years and a fine of up to €800,000.90
To illustrate, the above-mentioned infractions could apply to a hacker who gains unauthorised access to a virtual currency user's personal computer and virtual currency wallet (unauthorised access to computer systems or hacking) for the purpose of copying the virtual currency user's private key (concealment of data) to ultimately transfer the virtual currencies stored in the user's wallet to the hacker's personal wallet, which would amount to computer-related fraud (computer-related fraud).
iii Seizure of virtual currencies after criminal activity has been committed
Belgian authorities can confiscate virtual currencies that have been illegally obtained in the course of criminal infractions, just as they can confiscate other illegally obtained assets. The government already has in custody a certain amount of Bitcoins that it has seized during criminal investigations, although the value thereof has not been disclosed. In the framework of a criminal investigation in Belgium, brought before the Court of Appeal of Antwerp on 10 November 2016, the police confiscated 3.54 Bitcoins from a drug dealer. To put this in perspective, the US Federal Bureau of Investigation (FBI) is currently the second-largest Bitcoin owner in the world, with a stunning total of 144,000 Bitcoins.
The question that arises is what can or should a government do with such sum of virtual currencies? Should they be forfeited, and, if so, when should they be sold? On 2 March 2018, Koen Metsu asked the Ministry of Justice how many Bitcoins the government had confiscated since January 2015 and whether the government made a loss on the confiscated Bitcoins after confiscating them. Considering the volatility of virtual currencies, this is an important question, given that the US$2.8 billion worth of Bitcoin from the FBI during the all-time high in December 2017 climbed to approximately US$9.36 billion when Bitcoin hit a new all-time high of around US$65,000 in April 2021, but then lost around 50 per cent of its value in the months thereafter.
According to the Ministry of Justice, the Belgian Public Prosecutor is handling hundreds of files concerning virtual currencies, and in at least 10 cases virtual currencies have been seized. However, the Ministry of Justice's response to the parliamentary question did not mention the actual forfeiture of such virtual currencies, but only that 'the law on the missions and composition of the Central Organisation for Seizure and Confiscation (COIV), voted on 18 January 2018, provides that the COIV can manage confiscated virtual values'. Apart from this new piece of legislation, it would also be possible to forfeit virtual currencies based on Article 28 octies and 61 sexies, Section 2 of the Code of Criminal Procedure, which allows the forfeiture of certain assets that are exchangeable (whose value can be easily determined) and whose retention would lead to value reduction.
Tax
The number of cryptocurrency owners is drastically increasing, and it is estimated that around 46 million users own Bitcoins in 2021. Because of significant price fluctuations in particular, cryptocurrency owners might make considerable gains (or losses) on their initial investment. For example, someone who bought one Bitcoin on 1 January 2017 at €950 and sold it for approximately €54,000 in April 2021 would have made a €53,050 gain. On the contrary, someone who bought one Bitcoin in April 2021 at approximately €54,000 and sold it in June 2021 at €29,000 would have made a €24,000 loss. Cryptocurrencies raise important taxation issues, especially in relation to personal income tax and VAT.
i Personal income tax
Capital gains made by a Belgian resident from the sale of cryptocurrencies are not dealt with specifically in the Belgian Income Tax Code 1992. The existing rules allow the tax administration to tax cryptocurrency gains as either professional income or miscellaneous income.
If a person's professional occupation is trading cryptocurrencies, the profits generated from this occupation will be taxed as professional income, and will therefore be subject to the progressive tax rates that range between 25 and 50 per cent in Belgium.
If, conversely, a Belgian resident makes gains on cryptocurrency transactions outside the scope of his or her professional activity, he or she will benefit from a tax exemption on those gains, but only on condition that the transaction is realised within the boundaries of the normal management of his or her private estate. Article 90, 1° of the Income Tax Code indeed provides for a general tax exemption for capital gains made on private assets of the taxpayer (which include securities or currencies, such as cryptocurrencies, as well as tangible assets and real estate) on condition that they result from the normal management of his or her private wealth. The question on whether a transaction is considered to be realised within that normal management is one based purely on facts.
If gains resulting from cryptocurrency investments are made outside the scope of this normal management or derive from speculative transactions, they will be taxed as miscellaneous income, hence at a fixed rate of 33 per cent. It would probably be excessive to conclude that an investment in cryptocurrencies is always speculative because it is volatile, and as such, it implies a certain level of risk. The speculative nature of an investment in cryptocurrencies should always be assessed with regard to all the facts on a case-by-case basis. Indicators of speculation could be, for instance, the very short term of investments, the repetition of cryptocurrency transactions, the financing of the cryptocurrency investment through loans or the investment of large sums of money (compared to the value of a Belgian resident's entire estate).
As there is a large grey area between the speculative world and the normal management of a person's estate, in practice, taxpayers often apply for tax rulings to obtain legal certainty on the tax treatment of the gains made on their private assets (such as shares). The same applies for cryptocurrency gains. As a practical example, the Belgian Ruling Commission rendered a decision on 5 December 2017 regarding the tax treatment of the capital gains made by a student who developed a software application that automatically traded cryptocurrencies. The Ruling Commission held that the gains made from the sale of Bitcoins through a developed software application 'should not be considered as professional income within the meaning of Article 23 of the Belgian Income Tax Code but, in view of their speculative nature, are taxable as miscellaneous income within the meaning of Article 90(1) of the Belgian Income Tax Code'. The Ruling Commission recently shed additional light on the tax treatment of cryptocurrency gains. It published a virtual currency questionnaire to be filled in by a taxpayer when he or she applies for a pre-filing request in relation to transfers of virtual currencies. The list contains 17 detailed and diverse questions, from the sum invested in virtual currencies to the frequency of the transactions and the current professional occupation of the taxpayer, as well as the reporting on social media of his or her activity on virtual currency groups. From the answers provided by a taxpayer, the Ruling Commission will assess whether a cryptocurrency investment can be considered to have been made in the scope of the normal management of his or her private estate. Additional information regarding the Ruling Commission's position is apparent from its newsletter No. 3.104 In it, the Ruling Commission clarified that it 'will always evaluate each prefiling and application on a case-by-case basis'. However, the Ruling Commission states that, 'based on the prefilings and applications that have already been submitted, it is of the opinion that investments in virtual coins are generally of a speculative nature and that the income from these investments therefore constitutes miscellaneous income in accordance with Article 90, 1° ITC (or professional income when the income is realised in the context of a professional activity)'. It could be inferred from this last sentence that the Ruling Commission will adopt a general policy line going forward, whereby investments in cryptocurrencies will, as a rule, always be considered taxable, either as occupational income or as miscellaneous income.
At this time, considering that the information on virtual currency acquisitions and trading activities can only be found online on a user's cryptocurrency exchange account or cryptocurrency wallet (instead of a bank account), the tax administration will most certainly encounter some practical difficulties in obtaining this information or assessing whether a taxpayer fully disclosed all the relevant information.
ii VAT
On 22 October 2015, the Court of Justice of the European Union (CJEU) rendered a judgment in response to a request from the Swedish Supreme Administrative Court seeking clarification on the question of whether transactions on an online virtual currency exchange platform to exchange a traditional currency for a Bitcoin virtual currency, or vice versa, were subject to VAT.
The CJEU first clarified that the exchange of different means of payments constitutes a supply of services. Secondly, it stated that an exchange transaction involving a Bitcoin constitutes a supply of services for consideration. Subsequently, it focused on the question of whether this supply of services for consideration could fall under one of the VAT exemptions. It held that the exemption in Article 135(1)(e) of the VAT Directive applied. According to the Court, this exemption for transactions involving currency, bank notes and coins used as legal tender also applies to non-traditional currencies. The Court emphasised that to interpret this provision as including only transactions involving traditional currencies would go against the context and aims of Article 135(1)(e) of the VAT Directive, because transactions involving non-traditional currencies that have been accepted by the parties to a transaction are also financial transactions. Applying this judgment to this case, the Bitcoin transaction has no other purpose than to be used as a means of payment.
In this decision, the CJEU paved the way for a positive future for Bitcoin purchases at Bitcoin exchanges in the European Union. Following this decision, Europeans can continue to buy Bitcoins using traditional currency without paying any VAT on these transactions. Considering that VAT is an EU form of tax, any transactions involving virtual currencies should be treated in line with the CJEU's decision, including transactions carried out in Belgium. We hope that this approach will become adopted by countries outside the European Union, thereby further harmonising the taxation approach towards virtual currency transactions.
Other issues
i Data Protection Law
Since the General Data Protection Regulation (GDPR)108 entered into force, certain academics and commentators have emphasised the fundamental paradox between GDPR and blockchain technology. Whereas GDPR aims to protect EU citizens from privacy and data breaches, blockchain technology was designed so that data could be stored on a distributed ledger in an incorruptible way, and accessible for the public to see. The articulation of GDPR and blockchain technology raises several compatibility questions.
One question centres around certain data subject access rights. Pertaining to the right to be forgotten, the GDPR reads that 'the data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her', and the right to rectification, which reads that 'the data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her'. The question in this context is how can a person exercise these rights if his or her personal data is stored on a blockchain, since it is designed to be immutable? It is thus possible that personal data contained in smart contracts or virtual currency transactions cannot be erased or rectified, thereby violating the data subject's rights under the GDPR.
A second question relates to personal data transfers to a place outside the European Economic Area (EEA). Article 44 of the GDPR states that personal data can only be transferred to a country outside the EEA if the rights under GDPR are safeguarded in that country. How can this obligation be complied with if virtual currency transactions using distributed ledger technology are to be verified by other users (nodes) that could be located outside the EEA, and the information on the blockchain can be accessed by anyone with an internet connection from anywhere in the world?
Although both GDPR and blockchain technology are promising initiatives, certain obligations under GDPR could pose some challenges to companies deploying blockchain technology or to virtual currency companies. However, we are hopeful that the necessary (technical) solutions will be adopted in time to resolve these challenges.
ii Copyright law and NFTs
An NFT or non-fungible token is a unit of data stored on a blockchain, certifying a digital or physical asset as unique and not interchangeable (not fungible). NFTs can represent a variety of assets, including photos, videos, audio, artworks and other types of digital files (e.g., a digital file of a physical asset). An NFT can be traded or sold, and can contain details on how such asset can be used, copied or displayed. For example, Jack Dorsey recently sold the first tweet he ever made on Twitter as an NFT for US2.9 million. NFTs are then tracked on blockchains to provide the owner with proof of ownership that is separate from copyright.
The case of NFTs raises interesting questions with respect to copyright law for (digital) works in the form of an NFT. In Belgium, a work is protected by copyright law as soon as it is original (i.e., when it is the result of the author's own intellectual creation). The assignment of a work (understood as the tangible object) does not imply the assignment of the (intangible) copyright to such work (unless provided expressly and subject to the rules applicable to copyright assignment). Hence, the ownership of an NFT does not automatically grant the owner the right to perform copyright-restricted acts (such as a communication to the public). The general rules of Belgian copyright law are applicable to those works too. The resale right under Belgian copyright law is of particular interest for the resale of NFTs on a blockchain. In a situation where the NFT owner is different from the original author of the work, it indeed opens a right to the author of the original work to claim a share of the successive resale price of the NFT incorporating his or her work under certain conditions, even though they do not own the NFT.
Looking ahead
Whenever legal uncertainty hinders the development and adoption of virtual currencies, authorities and market regulators should provide the necessary clarification, or adopt new regulations that balance the rights and interests of all virtual currency market participants. As discussed throughout this chapter, the Belgian authorities will soon implement specific legislation on the activities and control of virtual currencies' exchanges and providers of custody portfolio services. However, several other uncertainties remain to be solved.
It could be argued that this legislative inertia is attributable to the very limited interest that Belgian investors have shown regarding Bitcoin and other virtual currencies compared to investors in other fintech-friendly jurisdictions, such as Switzerland and Germany. Nevertheless, this position is gradually changing considering the wider adoption of virtual currencies, which is also reflected in the increasing number of parliamentary questions relating to virtual currencies that have been filed in recent years and that have been discussed in more detail throughout this chapter.
Given the transnational nature of virtual currencies as a global phenomenon, we believe that virtual currencies are best regulated by transnational or international instruments. The EU, through AMLD5, has already taken action with regard to AML, and Valdis Dombrovskis, Executive Vice President of the European Commission, announced his intention to propose new EU legislation in this area. However, apart from AMLD5, there is no specific legislation that addresses (the opportunities or threats of) cryptocurrencies. Given the transnational character of virtual currencies, it is unlikely that Belgian authorities will take initiatives on their own to regulate them. As for the AML Act, the impetus is likely to come from the European Union, whose legislative instruments will then be transposed into Belgian law.
It is also interesting to note that virtual currencies have been discussed regularly for many years at the G20 level. Some G20 countries even identified virtual currency regulation as a priority for the coming years.