FRANCE Law and Practice Contributed by: Estelle Rigal-Alexandre, Marie Frisch and Mohamed Bouzenada, Soulier Bunch
7. Tokenisation and Real-World Assets 7.1 Treatment Under MiCA, the regulatory treatment of tokenised assets depends on their legal qualification, with a clear distinction between financial instruments and other crypto-assets. Where a token qualifies as a financial instrument within the meaning of MiFID II, it falls outside the scope of MiCA and is regulated under the existing financial services framework, irrespective of the use of blockchain technology. In such cases, tokenisation does not alter the applicable regulatory regime, and the asset is treated in the same way as its non-blockchain equivalent. By contrast, tokenised assets that do not qualify as financial instruments may fall within the scope of MiCA, in particular as asset-referenced tokens or oth- er crypto-assets are therefore subject to a dedicated regulatory framework. Similarly, tokenisation of real- world assets (RWA) does not, in itself, modify their legal nature: the underlying asset remains governed by its applicable legal regime (eg, property, commodi- ties or contractual rights), while the token representing it is subject to MiCA where applicable.
credit institutions or electronic money institutions. As such, while MiCA establishes a dedicated regime for stablecoins, it also builds on the existing payments regulatory framework by aligning EMTs with electronic money rules, in particular as regards authorisation, governance, safeguarding of funds and redemption rights at par value. 6.2.3 Backing Assets EMTs must be fully backed by reserve assets at all times, which must be composed of assets denomi- nated in the same official currency as the reference currency and must be held in a manner that ensures segregation from the issuer’s own assets and protec- tion against insolvency. MiCA requires that reserve assets be invested only in highly liquid, low-risk instru- ments, with a significant portion held in deposits with credit institutions or in secure and liquid financial instruments, to ensure that holders can redeem their tokens at par value at any time. In addition, MiCA imposes strict custody and safe- guarding requirements, including holding reserve assets with authorised credit institutions or, in certain cases, through appropriately regulated custodians, and ensuring that they are not encumbered or used for purposes other than backing the tokens. Impor- tantly, issuers of EMTs are prohibited from granting interest or any other form of remuneration linked to the holding of such tokens, in order to avoid their use as investment products and preserve their function as means of payment. 6.2.4 Special Considerations MiCA aims to prevent systemic risks associated with stablecoins.
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