The new crypto regulation (“MiCA”) and the voted-down PoW ban Posted on 25 March 202231 May 2024 by Arjen Schram MiCA should ensure more regulation in crypto marketWithin the crypto market, there has been a need for more regulation for years; and this is currently being worked hard within the European Union. Indeed, a new regulation is in the pipeline, the Regulation on Markets in Crypto Assets, also abbreviated as “MiCA”(Regulation on Markets in Crypto Assets). This new regulation aims to create a uniform European regulatory framework around crypto and create a robust legal framework. All of this to promote crypto innovation, consumer and investor protection, market integrity and financial stability.MiCA voted down by European ParliamentHowever, on 14 March 2022, the proposal was voted down by the European Parliament. Indeed, the draft regulation included a provision that was interpreted as prohibiting crypto asset services from offering cryptocurrencies based on the Proof-of-work mechanism, such as Bitcoin and Ethereum, for example. Such crypto-currencies are “mined” using processors that solve complicated arithmetic calculations, which requires a lot of computing power – and thus a lot of energy; not exactly a sustainable exercise. The “PoW ban” has since been removed from the draft regulation and such a ban now seems to be off the table for good. So the draft regulation could be voted on again soon.New MiCA on the wayAll the more reason to talk about this new “crypto regulation”. Which, by the way, does not contain the first European legislation on crypto. In 2018, the fifth Anti-Money Laundering Directive was adopted, now implemented in our Dutch Wwft (Wet ter voorkoming van witwassen en financieren van terrorisme). That already contained some provisions dedicated to crypto, incidentally without actually mentioning the term. However, the purpose of that legislation was to bring “gatekeepers to virtual currencies” under anti-money laundering regulations. We wrote two blogs(I)(II) about this directive at the time. The purpose of the new MiCA regulation is entirely different: to remove obstacles to freedom of establishment and make the single market for crypto services work better.BackgroundThe MICA regulation is itself part of the Digital Finance package, a package of measures from the European Commission aimed at creating more space and boosting the potential offered by new digital financial services. As such, the regulation is part of a broader strategy for crypto assets and blockchain technology within the European Union. One of the priorities in that strategy is that the European regulatory framework for the relevant services should be made “innovation-friendly” and not hinder the adoption of new technologies. To date, Member States all deal with crypto assets and crypto asset services differently. First of all, this leads to crypto companies in Europe finding it difficult to scale up. For instance, different licensing regimes apply in member states and these companies sometimes have to adapt their business model if they become active in another member state. This obviously leads to higher costs. The difference in legislation also creates an uneven playing field for crypto businesses within the European Union as a whole. The new regulation aims to give crypto companies access to the full internal market and promotes the legal certainty needed to foster innovation in the crypto market within the European Union. Uniform European crypto legislation simultaneously ensures greater market integrity and better protection for consumers and investors. This, in turn, should result in greater market confidence.Content at a glanceThe new regulation will apply to crypto asset service providers and crypto asset issuers and contains uniform definitions for the different types of crypto assets, crypto services and crypto issuers. Unlike the somewhat broadly defined terms in the Fifth Anti-Money Laundering Directive – in which we got no further than “virtual currency” and “custodial wallet providers” – the MiCA Regulation includes “real” crypto definitions such as “Utility tokens”, “asset-referenced tokens” (aka: stablecoins) and “Distributed Ledger Technology” (aka: blockchain). Without wanting to give an exhaustive overview – this blog is not suitable for that – below is a staccato sample of the content of the new regulation.Providers of all crypto asset services will be subject to rules on licensing and operating conditions.In addition, a number of general requirements will soon apply to all crypto asset services, such as the obligation to act honestly, fairly and professionally, organisational requirements will be set and, for example, having a complaints procedure will be mandatory.The regulation also provides rules on the safekeeping of crypto assets and client funds.Specific crypto services, such as custodian services, trading platforms and exchange services, will be subject to specific rules.Issuers (issuing entities) of cryptocurrencies will be required, among other things, to publish an information document (a so-called “white paper”) that will have to comply with certain requirements (to avoid the resulting regulatory burden, SMEs will be exempted from this. The threshold will be for issuing crypto assets worth less than €1,000,000 over a 12-month period).Issuers of stablecoins will be subject to a specific licensing requirement unless the outstanding amount of stablecoins is less than €5,000,000. They will also be subject to rules on holding asset reserves covering the value of stablecoins and requirements on the safekeeping of those reserves.The regulation further contains – among other things – rules on the supervision to be carried out by national authorities, prohibitions to prevent market abuse and rules on offers and advertisements to the public of crypto assets. In short, the regulation contains a very comprehensive regulatory framework on crypto assets and crypto asset services.What Wieringa Advocaten can do for youWant to know more about the new European crypto regulation MiCA or have other questions about crypto? We have extensive experience litigating and advising on crypto. Wieringa Advocaten is happy to assist you.
Amsterdam tightens vacancy bylaw Posted on 21 February 202227 May 2024 by Lucia Tellegen The Municipal Executive of Amsterdam recently announced that the Vacancy bylaw Amsterdam 2016 will be tightened. The draft Vacancy bylaw Amsterdam 2022 is available for public consultation until March 31, 2022.Vacant Property Act – the legal basisPursuant to Article 2 of the Vacant Property Act (Leegstandswet), the City Council may adopt a Vacancy bylaw (Leegstandsverordening). This bylaw may stipulate that vacancy of certain designated categories of buildings shall be reported by the owner to the municipal executive as soon as such vacancy exceeds a period of at least six months. The municipal executive may also maintain a list of its own initiative of buildings found to be vacant.The Vacant Property Act allows the municipal executive (college van burgemeester en wethouders) to grant a permit for the temporary rental of vacant housing. This is also referred to as a vacancy permit (leegstandsvergunning).Vacancy bylaw 2016 – the current set of rulesCurrently, the Vacancy bylaw 2016 applies within the municipality of Amsterdam. It applies to 1) office buildings located in designated areas, 2) office buildings with a total lettable floor area greater than 5,000 m2 and 3) residential buildings.If these buildings are vacant for more than six months, the owner is required to report vacancy to the municipal executive. Vacancy occurs when a building is not being used by a tenant or another user.Within three months of the vacancy report, a vacancy consultation (leegstandsoverleg) between the municipal executive and the owner follows. That consultation takes place with at the background of a balanced weighing of interests, with on one side the public interest of combating vacancy and on the other side the burden that eliminating vacancy entails for the owner.After the vacancy consultation, the municipal executive may adopt a so-called vacancy decision (leegstandsbeschikking). In such a decision, the municipal executive determines whether the building (or part of it) is suitable for use.In the event that the vacancy lasts longer than twelve months, the municipal executive may nominate a tenant. The owner is obliged to offer an occupancy agreement to this tenant, unless he still enters into an occupancy agreement with a self-selected tenant within three months. The municipal executive may require the owner to make provisions necessary for use.Crisis and Recovery Act – experimental tightening of the Vacancy bylawArticle 2.4 of the Crisis and Recovery Act (Crisis- en herstelwet) provides that at the request of an administrative body and by way of an experiment, it is possible to temporarily deviate from various laws, including, among others, the Vacant Property Act. Such an experiment must contribute to sustainable or innovative developments or the strengthening of the economic structure.The municipality notes that the process that follows from the current Vacancy bylaw takes too much time. Moreover, the municipality sees itself as playing more of a brokerage role. The owner can wait until a user is proposed who is willing to pay the requested rent.Against this background, in 2021 the CRa Implementation Decree included an article allowing the municipality of Amsterdam to deviate from the Vacant Property Act until January 1, 2025. This article has been translated into the draft Vacancybylaw 2022For example, it is made possible to shorten the notification period from six months to three months. And the municipal executive must conduct a vacancy consultation with the owner within two (instead of three) months of receiving the notification.The municipal executive may also determine what provisions the owner must make, and within what time frame, to make the property fit for use. However, the amenities required of the owner cannot exceed the requirements applicable to existing construction or remodeling in the 2012 Building Code.And also, the municipal executive may include in a vacancy order a period of at least one month within which the living space shall actually be put to use as living space when it is suitable for habitation. The owner can make a reasoned request to extend this period by at least one month.An important change is that the draft Empty Premises Ordinance 2022 allows the owner to be required to rent out the vacant building at a market rent to be determined by the college. In determining the maximum market-based rent, the municipal executive will use the maximum reasonable rent based on the housing valuation system for non-liberalized properties. For the maximum market-conforming rental price for deregulated dwellings, the municipal executive will assume the market-conforming rental price for the dwelling in its condition, taking into account the increase in value due to any necessary facilities to be installed to make the dwelling habitable.Finally, owners of housing intended for sale or for demolition and renovation may be required to rent out the housing and apply for a vacancy permit to do so.
Privileges Posted on 9 October 201529 May 2024 by Joost Van der GrintenThe main rule is that creditors can recover from the entire assets of their debtor (Article 3:276 of the Civil Code) and that they have an equal right among themselves to be paid from the net proceeds (of the execution) of their debtor’s assets (Article 3:277(1) of the Civil Code). Exceptions to this main rule only follow from the law. Thus, the creditor and debtor cannot mutually determine that the creditor’s claim will be recoverable on a priority basis over other claims. The reverse is possible, however; the debtor and creditor can mutually stipulate that the creditor’s claim will be subordinated.RankIf the debtor cannot pay all his debts, as often happens in bankruptcies, what matters is the mutual rank of the different creditors. That is where privileges become interesting. A privilege gives a higher rank in the distribution. Privileges only follow from the law and are divided into special privileges that give the creditor a higher rank only on the proceeds of a particular asset, and general privileges that give the creditor a higher rank on all the debtor’s assets.Examples of special privileges:– a claim for payment of costs incurred to preserve an object is privileged on the object so preserved (Article 3:284 of the Civil Code);– a claim for the preservation of goods under a construction contract is (subject to conditions) preferred over those goods (Article 3:285 of the Civil Code); and– a claim of the association against a flat owner is privileged on the flat right (Article 3:286 of the Civil Code).Examples of general privileges:– a claim in connection with costs of the application for bankruptcy if bankruptcy is declared on the application (Article 3:288 sub a of the Civil Code)– a claim by an employee against his employer in connection with pension instalments that have already expired (Article 3:288 sub c of the Civil Code); and– a claim of an employee against his employer in connection with salary arrears (Article 3:288 sub e of the Civil Code).In practice, it regularly happens that privileges run together with other rights to which priority is attached, such as pledge or mortgage, lien and other privileges. A complete overview of which creditor has which rank is beyond the scope of this blog (there are manuals written all over the place about that). Roughly speaking, the following order of precedence applies – note that there are many exceptions:1. right of retention (subject to conditions; Articles 3:291 and 3:292 of the Civil Code);2. pledge and hyptheque3. special privilege4. general privilege; and5. other creditors.If you are faced with your debtor’s bankruptcy, it is possible that you may rank higher than other creditors, for example because your claim has a privilege attached to it. It can certainly pay to investigate this. We will be happy to assist you.This blog is part of the Security Rights Series.