The emergence of digital assets has profoundly transformed the economic and property landscape. For businesses and individuals alike, these new forms of value represent both opportunities and considerable legal challenges. Attempting to understand them using traditional legal tools is a complex exercise, given their diverse nature and evolving technology. However, a precise legal qualification is essential to secure transactions and anticipate tax or inheritance consequences. The aim of this article is to demystify legal challenges and practical solutions relating to digital assetsby proposing an analysis grid for investors and economic players. The assistance of a lawyer competent in commercial law is often necessary to navigate this rapidly evolving regulatory framework.
Understanding the legal status of digital assets
To approach the issue of digital assets with confidence, it is essential to first understand the mechanism that gives them life and the fundamental distinction that the law makes between them. This first qualification stage is crucial, as it determines the entire applicable legal regime.
The tokenisation process and the digitalisation of the economy
At the heart of the digital asset ecosystem lies the process of "tokenisation". This is the process of registering any asset on a decentralised register such as a blockchain. The aim is to represent it in a digital form, the "token", to make it more easily separable and transferable, and therefore more liquid. This massive digitisation of the economy, comparable to securitisation in its day, makes it possible to divide up the ownership of an asset and optimise the use of its various functions.
The distinction between named and unnamed assets
Faced with this diversity, French and European legislators have begun to define certain categories of assets. These are referred to as "named" digital assets: those that have their own name and their own legal regime, however embryonic. Alongside this category is a vast group of assets that do not fit into any predefined box. These are the 'unnamed' assets, for which legal analysis is still essentially based on common law and contractual creativity.
Named digital assets: definitions and legal nature
French and European law have gradually identified and defined several major families of crypto-assets. This classification, although technical, is the first step in understanding the obligations on issuers and service providers.
The triptych of French law: crypto-currencies, utility tokens and financial tokens
The French Monetary and Financial Code, particularly since the PACTE Act of 2019, articulates its vision around three types of assets. First, virtual currencies (or crypto-currencies), such as Bitcoin, defined as a digital representation of value accepted as a medium of exchange but not having the legal status of money. Then there are utility tokens, which confer a right to a future service or product provided by the issuer. Finally, security tokens, which are similar to traditional financial instruments (equity or debt securities) and are subject to financial regulation.
The European framework (mica) and its classification of crypto-assets
The European regulation on crypto-asset markets, known by its acronym MiCA (Markets in Crypto-Assets), has harmonised the approach at EU level. MiCA does not adopt the French distinction exactly, but proposes its own classification. It excludes from its main scope financial tokens (already regulated) and NFTs, with some exceptions. The regulation focuses on three categories: utility tokens, asset-based tokens (ARTs), which aim to maintain a stable value by referring to a basket of assets, and e-money tokens (EMTs), which refer to a single official currency. For a detailed analysis of these regulations, see our article dedicated to the European regulatory framework for crypto-assets: understanding MiCA and TFR.
The legal nature of virtual currencies and utility tokens
Despite these definitions, the true legal nature of these assets remains a matter of debate. The French Monetary and Financial Code is clear: crypto-currencies are not currencies in the legal sense. They are generally described by judges as intangible, fungible and consumable movable assets. This analysis has practical consequences, for example in the event of a loan, which will then be a consumer loan (restitution by equivalent) and not a loan of money. As for utility tokens, their nature depends on the underlying service. They are above all intangible movable property representing a claim (the right to obtain a service or good) against their issuer.
Unnamed digital assets: the challenge of qualification
Alongside the categories that are already regulated, new forms of digital assets are constantly emerging, posing an ongoing challenge to the law. Stablecoins and NFTs are the most high-profile examples.
Stablecoins: between crypto-assets and electronic money
Stablecoins (or "stable cyber tokens") were designed to offset the volatility of traditional crypto-currencies. Their value is backed by that of a more stable asset, such as a legal tender (euro, dollar) or a basket of assets. MiCA regulation has clarified their status by making a distinction between ARTs (asset-based tokens) and e-MTs (electronic money tokens). The latter, e-MTs, are considered to be electronic substitutes for notes and coins. They represent a claim on the issuer, who is obliged to redeem them at their face value at any time. This characteristic brings them very close to electronic money, which has major implications, particularly in the case of gifts or loans.
Non-fungible tokens (nfts): instrumentum 3.0 and probatory function
The non-fungible token, or NFT, is a textbook case of the legal complexity of digital assets. Unlike Bitcoin, each NFT is unique and non-interchangeable, creating digital rarity. Technically, an NFT is a certificate of authenticity and digital exclusivity, registered on a blockchain, which points to a digital file (an image, a video, a text). Its role is not to confer ownership of the file itself, but to prove who holds the original and unique 'token' associated with it. Some legal experts call it a modern-day instrumentum: a medium that establishes a right. Its function is twofold: evidentiary, by attesting to a link of exclusivity, and substantive, by creating the rarity that gives the digital object its value. L'the influence of technology on the legal status of digital assets is particularly evident here.
The need for a "support contract" for nfts
Since the NFT is only a technical certificate, the nature and extent of the real rights it confers on its holder (right of reproduction, use, resale) are unclear. It is therefore essential that a "support contract" accompanies the issue and transfer of any NFT. This legal document must precisely define the rights and obligations of each party: the issuer, the seller and the buyer. Without such a contract, the purchaser of an NFT could find himself the owner of a simple line of code without any legal prerogative over the work or property he thinks he has acquired.
The extrinsic approach: the influence of existing legal systems
In addition to their intrinsic nature, the classification of digital assets must also take into account the context in which they are used. Confronting them with established bodies of law, such as family law or the law of joint ownership, requires adaptations and raises unprecedented practical issues.
Digital assets and matrimonial property law (own property, joint property)
For a couple married under the legal community regime, the question arises as to whether a crypto-asset portfolio is a joint asset or an asset belonging to one of the spouses. The principle is that any property acquired during the marriage is common property. Unless it can be proved that the acquisition was financed by own funds (from an inheritance, a gift, or held before the marriage) with a declaration of reinvestment in due form, the digital assets will be considered as common. The situation becomes more complex with "forks" (bifurcations of blockchain creating a new crypto-currency) or "mining" rewards. Are these fruits that fall within the community, or accessories that follow the qualification of the main asset? The analogy with securities is often tempting, but its justifications are not always transposable.
Digital assets and joint ownership: management and powers of creditors
Managing digital assets in joint ownership (following an inheritance or joint acquisition) is a real practical challenge. Management power is often concentrated in the hands of the person who holds the private keys or access codes to the exchange platform. This de facto control confers private enjoyment and can paralyse the rights of other joint owners. To make management more secure, the introduction of a "multi-signature" system, requiring the agreement of several people to validate a transaction, is a preferred technical solution. Similarly, for creditors, capturing digital assets remains complex. If the assets are held on an identified platform, seizure is conceivable. But if the debtor himself holds his keys on a physical portfolio, effective seizure of the assets will depend on his cooperation.
The legal classification of digital assets is a work in progress, at the crossroads of law and technology. Each situation requires a case-by-case analysis to determine the nature of the asset, the rights attached to it and the applicable legal regime. To ensure the security of your investments and operations, the support of a law firm is an essential precaution.
Sources
- French Monetary and Financial Code, in particular articles L. 54-10-1 et seq.
- Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets (MiCA).
- Civil Code, in particular articles relating to property law, contracts and matrimonial property regimes.