Manimama's experts are well versed in the complexities of cryptocurrency regulation and are committed to sharing their findings with businesses and individuals navigating this dynamic sector.
Indeed, our legal team recently finalized a comprehensive study on the national implementation of the Markets in Crypto-assets Regulation (MiCA) in various EU countries. The legal research not only highlights the differences in how MiCA is adopted at the national level, but also offers standard rules for compliance. Today we offer you an insight into the specifics of obtaining a cryptocurrency license in the Netherlands under the new MiCA provisions.
Current requirements (prior to MiCA implementation)
To register, the Company must file the following information with DNB:
1) General company information, including articles of association (in Dutch) and KVK extract.
2) Foreign companies must include a certified copy of the notarial deed that contains the company’s articles of association. Also provide an extract from the Business Register from the country of incorporation. These documents must be in English.
3) A company plan, outlining the strategy, an overview of the activities and a SWOT analysis
4) Composition of the board, including organisational and control structure
5) Delineation of the business operations and management, including rules and regulations, audit, notification procedure, secondment, training, and education
6) Description of business operations
7) A file per board member, demonstrating their fitness and propriety
Registration forms.
Has the jurisdiction enacted a law/draft law implementing MiCA?
Law 36527 Amendment to the Financial Supervision Act and the Economic Offences Act implementing Regulation (EU) 2023/1114 on crypto asset markets (Implementation Act on the Crypto Asset Regulation).
Who is the regulator under the law/draft law implementing MiCA?
Autoriteit Financiële Markten (AFM) and De Nederlandsche Bank (DNB). The supervision of the issuance of stablecoins will be placed with DNB. AFM will be the supervisory authority for the other parts of MiCA.
Requirements for future CASPs stipulated by the national legislation implementing MiCA, the presence of national peculiarities
Meet the requirements set out in MiCA.
The period of time by which the CASP must comply with the new requirements, as well as the procedure for notifying the regulator of compliance with the new requirements
The AFM has started accepting licensing applications from crypto firms from April 22, 2024. If approved, the licences will kick into effect when MiCA does on December 30, 2024.
Applicants for a licence should start by completing the forms and submitting them with the checklist and accompanying management letter via Cryptshare and addressing it to crypto@afm.nl.
CASP authorization:
- Cover note:
- Management letter
- Attention points
- Documentation overview
- Authorization form CASP-licence, including (based on draft RTS):
- General information
- Programme of operations
- Governance arrangements
- Risk management and compliance, incl. IT/DORA*
- Business continuity
- Segregation of funds and crypto-assets
- AML (Wwft), Sanctions (Sanctiewet), incl. TFR**
- Prudential safeguards and qualifying holdings (DNB)
- Checklist CASP-licence application
CASP-notification:
• CASP-notification form
• Checklist CASP-notification
Persons in charge of day-to-day operations and members of the supervisory board of CASP’s will be assessed based on the requirements for Group B in the ‘Beleidsregel geschiktheid 2012’. For the suitability and reliability assessment (i.e., Fit & Proper testing), applicants must submit the following documentation for every member of the board of directors (executive) and every supervisory board member (non-executive) of the CASP:
• Prospective appointment notification form
• Integrity screening form (only if not previously screened by the AFM or DNB or in case of new facts after previous screening)
• Declaration no antecedents (only if previously screened by the AFM or DNB, to state no new integrity related facts have occurred since then)
• Suitability matrix for policy makers
• Suitability matrix for supervisory board members (if applicable)
• Standardised curriculum vitae
• Copy ID
• Considerations regarding appointments
• Job profile
Is there a transition period before the full implementation of MiCA?
Transition period is 6 months – up to July 2025
The ability of a CASP from a jurisdiction with a transition period to operate freely in a jurisdiction without a transition period starting from January 1, 2025
These provisions have not yet been adopted.
Liability provided for CASPs that continue to operate at the place of registration without meeting the new requirements
Violations of the provisions set out in MiCAR can be enforced under both criminal and administrative law.
Other useful information regarding the implementation of MiCA
The AFM offers companies preparing a CASP licence application the opportunity to request an optional pre-scan procedure. This helps to make the licence application process more efficient while building up mutual knowledge of important subjects.
The pre-scan is not a substitute for a formal review of your authorization application and feedback will be of a general nature.
To be eligible for a pre-scan a party must:
• Have determined that their activities fall under the scope of MiCAR. (We suggest parties seek legal advice on this topic when still in doubt.)
• Be certain that they will apply for a MiCAR authorization in the Netherlands.
• Be at a sufficiently advanced stage of preparations to have substantive discussions on MiCAR compliance policies.
Regarding the pre-scan process, you can expect the following:
1. You contact the AFM at crypto@afm.nl to apply for the pre-scan, including a short summary of the most relevant topics which you would like to discuss.
2. We send you an email with a list of questions regarding your preparations for the MiCAR authorization application, as well as an invitation for a 1-hour online meeting.
3. You prepare a slide deck covering your answers to the questions provided and send this to us ahead of the meeting.
4. We have an online meeting in which you present your answers to the questions. During this meeting we can discuss any questions you have, provide you with general feedback and alert you to points of attention or concern.
Manimama Legal & Growth Agency provides a gateway for the companies operating as the virtual asset wallet and exchange providers allowing to enter to the markets legally. We are ready to offer an appropriate support in obtaining a license with lower founding and operating costs. We offer KYC/AML launch, support in risk assessment, legal services, legal opinions, advice on general data protection provisions, contracts and all necessary legal and business tools to start business of virtual asset service provider.
The content of this article is intended to provide a general guide to the subject matter, not to be considered as a legal consultation.
