FRANCE Law and Practice Contributed by: Estelle Rigal-Alexandre, Marie Frisch and Mohamed Bouzenada, Soulier Bunch
Second, the marketing of crypto-assets is subject to stringent rules. Promotional communications must be fair, clear and not misleading, and may only be car- ried out by authorised entities. In France, additional restrictions apply to influencer marketing, effectively prohibiting the promotion of crypto-assets by individ- uals acting on behalf of unregistered or unauthorised providers. Third, the issuance of crypto-assets without comply- ing with the white paper requirements may prevent the offering or trading of such assets within the European Union. Finally, certain categories of crypto-assets, in particu- lar ARTs and EMTs, are subject to enhanced regu- latory constraints, which may constitute a barrier to Unlike traditional financial regulation, MiCA does not establish a strict dichotomy between retail and pro- fessional investors. However, investor protection is a central objective of the framework, and several provi- sions are specifically designed to address retail risks. These include: • enhanced disclosure obligations; • requirements relating to the clarity and fairness of communications; and • governance standards for service providers. In practice, regulators adopt a cautious approach to activities targeting retail clients, particularly in the con- text of marketing and distribution. As a result, while the legal distinction between retail and professional investors remains less formalised than under MiFID II, the regulatory treatment of cryp- to-asset activities is significantly influenced by the need to protect non-professional users. Interaction With Other Regulatory Frameworks MiCA does not operate in isolation and must be read in conjunction with other applicable EU and national regulations. In particular, crypto-asset activities may fall within the scope of: entry for new market participants. Retail and Professional Investors
• MiFID II, where tokens qualify as financial instru- ments; • anti-money laundering and counter-terrorism financing rules, notably under the EU AML pack- age and the Transfer of Funds Regulation, which impose customer due diligence and traceability obligations; and • data protection rules under the GDPR, which may raise specific challenges in the context of block- chain-based services. This multi-layered regulatory environment requires market participants to conduct comprehensive legal assessments to ensure full compliance across all applicable regimes. Forthcoming Regulatory Developments Over the next 12 months, the French regulatory land- scape is expected to continue evolving as MiCA is fully implemented. The end of the transitional period for PSANs in July 2026 will mark the completion of the shift towards a fully harmonised European regime. In parallel, super- visory authorities are expected to further refine their approach to enforcement, particularly in areas such as anti-money laundering compliance, marketing prac- tices and cross-border activities. 2.3 Regulated Firms and Legal Wrappers The use of legal wrappers does not fundamentally alter the regulatory analysis applicable to crypto-asset activities in France. Rather, it adds an additional regu- latory layer, as both the underlying crypto-asset activ- ity and the structure used to carry it out must comply with applicable rules. In particular, where investors gain exposure to crypto- assets through a fund structure, the regulatory frame- work applicable to the fund and its manager remains fully applicable. This includes, depending on the struc- ture, the requirements arising from Directive 2011/61/ EU (the “AIFM Directive”) or Directive 2009/65/EC (the “UCITS Directive”), as implemented in French law and supervised by the AMF. In practice, the ability of regulated funds to invest directly in crypto-assets remains limited. UCITS funds
256 CHAMBERS.COM
Powered by FlippingBook