The emergence of cryptocurrencies and NFTs has shaken up the investment landscape, creating new opportunities but also a real legal headache. These new types of assets are struggling to find their place in regulatory frameworks designed long before their existence. One question is particularly acute: can they be classified as "miscellaneous assets"? Far from being anecdotal, this classification would have major consequences for issuers, platforms and investors. The issue arises in a complex regulatory context, in which the Autorité des marchés financiers (AMF) is seeking to protect investors. To fully grasp what is at stake, it is useful to understand the overall operation of intermediaries and AMF regulations applicable to them.
The difficult legal classification of digital assets
The law often struggles to keep pace with technological innovation. Because of their decentralised and intangible nature, digital assets fall outside traditional legal categories. The first challenge for legislators and judges was to give them a legal existence, a classification. Even before the creation of a specific regime, the authorities had to position themselves using existing legal tools, in particular the regime for miscellaneous assets, originally designed for atypical investments such as wine, diamonds or works of art.
The case of bitcoin: a precursor
Bitcoin has been used as a 'patient zero' for this qualification issue. A currency for some, a simple commodity for others, its legal nature has been the subject of intense debate. Very early on, the question of whether it should be subject to the regulations governing miscellaneous goods was raised. The analysis was simple: if a platform offered to acquire bitcoins by highlighting the possibility of a future financial gain, it could potentially fall under this regime. This approach saw bitcoin not as a means of exchange, but as a pure speculative product, an object of investment. This initial thinking paved the way for a broader framework and demonstrated how an old system could be used to address a new economic reality.
Digital assets as defined by the Monetary and Financial Code
To clarify the situation, the legislator has intervened, notably with the 2019 PACTE Act. The Monetary and Financial Code (CMF) now defines digital assets. This category is mainly divided into two sets. On the one hand, cryptocurrencies, described in Article L. 54-10-1 as a "digital representation of a value that is not issued or guaranteed by a central bank or public authority". but which is accepted as a means of exchange. On the other hand, tokens, defined as "any intangible asset representing, in digital form, one or more rights".provided that they do not qualify as financial instruments. This definition has the merit of existing, but it does not resolve all the issues of boundaries with other existing regimes.
Non-fungible tokens (NFT): between miscellaneous goods and digital property rights
Even more recently, Non-Fungible Tokens, or NFTs, have added a new layer of complexity. Their meteoric popularity, particularly in the world of art and video games, has created markets involving huge sums of money, often outside any clear regulatory framework. Their legal nature is even more elusive than that of cryptocurrencies.
Definition and characteristics of NFT
In practical terms, an NFT is a non-fungible token, i.e. unique and non-interchangeable, registered on a blockchain. It functions as a certificate of authenticity and digital ownership associated with an asset, which may itself be digital (a digital work of art, an object in a video game) or physical. Its value lies not only in the underlying asset, but also in the token itself, which can be bought and sold on a secondary market. It is this speculative dimension that is attracting the attention of the regulator. The NFT is not a currency, but a security. But what kind of security?
The relevance of the Miscellaneous Goods qualification for NFTs
This is where the regulations on miscellaneous goods come into their own. Since the 2014 reform, the law aims to "any person who offers [...] to acquire rights in one or more assets by promoting the possibility of a direct or indirect financial return".. This very broad definition seems tailor-made for many NFT offerings. When a project does not simply sell a digital object for its use or its aesthetic value, but insists on its potential for added value and the ease with which it can be resold on a market, the sales pitch shifts. The offer becomes an investment proposition. In this case, the NFT, or more precisely the offer on which it is based, could well be reclassified as a transaction involving other property. To better understand this system, it is essential to understand definitions and operations subject to the regulations governing miscellaneous goods.
Coordination between the regulation of digital assets and other goods
French law therefore has several regimes that seem to apply to the same subject matter: that of digital asset service providers (DASPs) and that of intermediaries in general. How do these two sets of rules coexist? The answer is far from obvious and creates legal uncertainty for all players in the sector.
No explicit exclusion for digital assets
A technical but fundamental point needs to be emphasised. Article L. 551-1 of the French Monetary and Financial Code, which defines the scope of miscellaneous assets, explicitly lists the transactions that are excluded from its application. These include banking transactions, financial instruments and insurance contracts. Yet nowhere in this list of exclusions does it mention digital assets. In law, what is not expressly excluded can be considered to be included if the qualifying conditions are met. As the law currently stands, there is therefore nothing to prevent an offer involving cryptocurrencies or NFTs from being subject to the regulations on miscellaneous goods if it is presented as an investment with a promise of return.
Risks of multiple schemes and the need for consistency
This situation raises the risk of cumulation of regulations. A player could, for the same offer, have to comply with both the obligations linked to PSAN status and those, which are very restrictive, for intermediaries in various goods (registration of an information document with the AMF, statutory constraints, etc.). Applying two systems with similar rationales but distinct formalities to the same activity would be inconsistent and would create an excessive regulatory burden. Many practitioners and authors are therefore calling for clarification from the legislator. An express exclusion of digital assets from the sundry goods regime, accompanied if necessary by a strengthening of their own regulatory framework, seems to be the most logical solution for ensuring the coherence and legibility of the law.
Implications for professionals and investors
This legal uncertainty is not just a matter for theorists. It has very practical consequences for companies developing projects in this ecosystem, but also for individuals wishing to invest their savings in it.
The vigilance required of platforms and intermediaries
For exchange platforms, creators of NFT projects or intermediaries of any kind, the main risk is the requalification of their activity. A player who thought he was operating in an area that was little or not regulated could suddenly find himself criticised by the AMF for not having complied with the very strict requirements of the miscellaneous goods regime. The penalties can be severe: financial penalties, disqualification and even criminal sanctions. It is therefore essential for all professionals in the sector to carry out a detailed legal analysis of their offering. The way in which the product is presented to the public is crucial. As soon as a financial return argument is used, the alarm bells should ring and an in-depth analysis of the application of the sundry goods regime is required.
Protecting investors in the face of complexity
From the investor's point of view, this situation is also problematic. The complexity and vagueness of the applicable rules make it difficult to assess the seriousness and legality of an offer. A project registered with the AMF as an offer of various goods offers a certain level of protection, notably through the control of disclosure documents. Conversely, an offer that should have been registered but was not exposes investors to greater risks, without the guarantees provided by law. Faced with promises of high returns and sometimes aggressive marketing, the utmost caution is called for. Understanding the legal framework of an investment is a non-negotiable step before making a commitment.
The boundary between a simple digital asset and a miscellaneous good therefore remains porous, largely dependent on the way in which the offer is marketed. This legal grey area calls for a great deal of vigilance on the part of professionals and for legislative clarification to secure the ecosystem. For project promoters and investors alike, legal risk analysis has become an essential prerequisite. To obtain expert legal support for innovations in financing and digital assetsContact our firm to assess your situation and secure your operations.
Sources
- French Monetary and Financial Code, in particular articles L. 54-10-1, L. 551-1 et seq.
- Act no. 2019-486 of 22 May 2019 on the growth and transformation of businesses (PACTE Act).
- Law no. 2014-344 of 17 March 2014 on consumer affairs (Hamon law).
- General regulations of the Autorité des marchés financiers (AMF).
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