Senior Counsel
Analysis & trends
The civilization of crypto-assets
Long lagging behind banking and financial law, civil law is gradually becoming a key player in the legal regime governing crypto-assets. A ‘civilization’ of crypto-assets is emerging: these assets, having acquired a central role in business life, are now addressed by property law and security interests law.
Stakeholders in the sector will welcome the recent developments in French law which, following the MiCA Regulation, adopt the classification of negotiable intangible assets.
The meteoric rise of crypto-assets in business life has, for several years, prompted a normative response.
Under French law, Law No. 2019-486 of 22 May 2019 relating to the growth and transformation of enterprises (PACTE Law) established a framework for the provision of services on digital assets and, to a lesser extent, for fundraising through the issuance of digital assets. At the European level, Regulation (EU) 2023/1114 of 31 May 2023 (MiCA Regulation) has strengthened and harmonized the regulation of crypto-asset markets in the various Member States. The MiCA Regulation defined crypto-assets as “a digital representation of a value or a right that may be transferred and stored electronically, using distributed ledger technology or similar technology.”[1] It has required crypto-asset service providers to take adequate measures to protect their clients’ property rights. In so doing, the European legislator invited the Member States to clarify the treatment of crypto-assets under civil law, in a context where the utilities of this asset class are diversifying: investment, placement, means of payment, or store of value that can be mobilized in the context of financing operations.
Outside the European Union, it should be noted that significant solutions have been adopted by the United Kingdom through the recent entry into force of the “Property (Digital Assets etc) Bill”,[2] which has clarified certain aspects relating to the ownership of crypto-assets and enshrined case law solutions[3].
In France, uncertainties persisted regarding the treatment of this new category of assets under French civil law: although noteworthy, a judgment of the Nanterre Commercial Court which classified bitcoins as a loan for consumption—thus considering them as consumable and fungible goods[4]—did not establish settled case law.
However, a development is emerging: inspired by the valuable work of the Haut Comité juridique de la place financière de Paris, certain reforms bear witness to a timely “civilisation” of the crypto-asset universe[5].
- Firstly, by Ordinance No. 2024-936 of October 15, 2024 relating to crypto-asset markets[6].
The ordinance has established in a particularly clear manner the legal nature of crypto-assets: “digital assets are negotiable intangible property“[7], and this regardless of the rights they confer or the value they represent. In doing so, the legislator simplifies transactions involving crypto-assets by employing a concept of negotiability well known in commercial law: consequently, the formalities attached to the transfer of intangible rights (acceptance by the debtor in an authentic instrument or service by extrajudicial means) are set aside, while the unenforceability of exceptions is enshrined. Fundamental in this respect, Article L.226-3 of the Monetary and Financial Code now provides that “no one may claim, for any reason whatsoever, a digital asset whose ownership has been acquired in good faith by the owner of such digital assets.” Already recognized in the context of the circulation of financial securities[8], the extension of this protective solution for the bona fide acquirer—initially reserved for tangible movable property by Article 2276 of the Civil Code[9]—demonstrates the openness of our property law to these new intangible assets[10].
Another major contribution of the Ordinance of 15 October 2024 lies in the clarification of the regime governing the transfer of ownership. Stakeholders are now better able to anticipate certain issues, whether relating to property law, tax matters (determination of the taxable event), or regulatory aspects (qualification of the crypto-asset custody service). The Ordinance indeed establishes the principle that crypto-assets are to be registered for the benefit of the acquirer in the blockchain register[11]. By way of exception, when the crypto-assets are held and managed by a crypto-asset service provider[12], the transfer results from the registration of the acquirer’s position in the position register opened in the client’s name and corresponding to their rights over the crypto-assets. An implementing decree must still specify certain other modalities of this transfer of ownership: in this respect, it is permissible to expect provisions similar to those applicable to financial securities regarding the conditions for recording the transaction in the register opened in the name of the acquirer[13].
- Secondly, by Law No. 2025-391 of April 30, 2025 containing various provisions for the adaptation of EU law in economic, financial, environmental, energy, transport, health, and the movement of persons matters.
This law has indeed introduced into French law a new special security interest: the pledge of digital assets[14]. Codified in Article L.226-5 of the Monetary and Financial Code, it aims to secure the establishment of guarantees on digital assets so that these may become credit instruments. To this end, its regime has been constructed on a proven model: the pledge of securities accounts.
One will therefore find therein, inter alia: the inclusion of the fruits generated by digital assets in the scope of the pledge; the possibility to provide for successive pledges or a watering clause; or even an unassailable right of retention granted to the secured creditor.
In the absence of a transfer of ownership of the crypto-assets to the beneficiary, crypto-asset service providers shall ensure the safekeeping and administration of pledged crypto-assets when the security is constituted by escrow. Indeed, pursuant to the MiCA Regulation, such provider is required to establish an organization and procedures designed to reduce the risk of loss of crypto-assets, as well as to implement a technical segregation between the crypto-assets held on behalf of their clients and those held for their own account. This segregation is also legal in nature: the provider responsible for safeguarding the client’s crypto-assets must ensure that they are legally separated from its own assets, so that its creditors may not assert any rights over said crypto-assets, particularly in the event of insolvency proceedings[15].
A civilization of crypto-assets is emerging: this is a cause for satisfaction.
