FRANCE Law and Practice Contributed by: Estelle Rigal-Alexandre, Marie Frisch and Mohamed Bouzenada, Soulier Bunch
gible assets capable of being owned and transferred. While they do not constitute property in the traditional sense of tangible goods, they are generally treated as assets to which proprietary rights may attach. By contrast, crypto-assets that fall outside the scope of MiCA, such as certain non-fungible tokens (NFTs), remain subject to general principles of French civil law and the contractual arrangements between the par- ties. Their legal characterisation is therefore less cer- tain and must be assessed on a case-by-case basis, depending on the rights attached to the token and the underlying asset, if any. In a decision that drew wide commentary, the Nanterre Commercial Court classified Bitcoin as a consumable and fungible asset due to its usage and interchange- ability. As a result, a loan of bitcoins was deemed to transfer ownership and risk to the borrower. The court concluded that the borrower was entitled to keep the bitcoin cash received following a hard fork, as this constituted the fruit of the original loaned bitcoins. Ownership and Transfer Mechanisms of Crypto- Assets Under French law, the determination of ownership of crypto-assets is closely linked to the technical mecha- nisms of distributed ledger technology. As a rule, own- ership is deemed to be transferred upon the registra- tion of the crypto-asset in favour of the acquirer on the relevant distributed ledger. This approach reflects the functional role of blockchain systems and recog- nises on-chain registration as the decisive element for establishing ownership. Where crypto-assets are held through a crypto-asset service provider offering custody services, owner- ship is instead determined by reference to the internal records maintained by the custodian. In such cases, the transfer of ownership is effected through the reg- istration of the acquirer’s position in the account or register held by the service provider. This indirect holding structure is consistent with market practice and is particularly relevant for institutional investors. In practice, the identification of the owner may raise evidentiary issues, particularly where assets are held in self-hosted wallets. While control of the private keys
is generally treated as an indicator of ownership, it does not, in itself, constitute definitive legal proof in all circumstances. As a result, contractual documenta- tion and transaction records remain important in sup- porting ownership claims. Ownership and Transfer Mechanisms of NFTs To date, case law on the ownership of NFTs remains limited and fragmented, while legal doctrine offers divergent interpretations. Depending on the circum- stances, an NFT may be construed as: • an instrument evidencing the contractual transfer of ownership of a digital or physical asset; • an accessory to the asset it represents; or • merely a certificate of authenticity, without confer- ring any real rights over the underlying asset. Since 2022, French legislation has allowed public auc- tions of intangible goods. This has enabled judicial auctioneers to offer NFTs at auction, structuring the contractual documentation so that the transfer of the token is deemed to represent transfer of ownership of the associated work. Enforcement and Evidentiary Considerations The enforcement of proprietary rights over crypto- assets remains particularly complex in practice, despite their qualification as intangible assets capa- ble of being owned and, in principle, seized under French law. French law does not provide for a specific civil enforce- ment regime tailored to crypto-assets. As a result, existing enforcement mechanisms must be applied by analogy. In particular, traditional attachment pro- cedures designed for monetary claims are not directly applicable, as crypto-assets are not legally character- ised as sums of money. Instead, enforcement may rely on procedures applicable to intangible rights, which are not specifically designed for blockchain-based assets and raise significant practical uncertainties. In practice, the effectiveness of enforcement depends largely on the way the crypto-assets are held. Where assets are held through a CASP, it is theoretically possible to serve a seizure order on the intermediary, which may then be required to identify the account
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