FRANCE Law and Practice Contributed by: Hubert de Vauplane and Hugo Bordet, Morgan Lewis & Bockius LLP
11. Open Banking 11.1 Regulation of Open Banking
emphasises that NFTs associated with an image cannot be legally classified as works of art, nor, more generally, considered as a form, even a degraded one, of ownership over the work or its medium. The IGF thus calls for a legal clarifica - tion of NFTs and for separate regulation of these assets, from both a legal and fiscal perspective. In 2024, France introduced new forms of games with monetisable digital objects ( jeux à objets numériques monétisables , JONUM) into the French legal framework. These games are most - ly based on non-fungible tokens that merge two aspects: financial earnings and gamification. A text was adopted by the French Parliament’s Joint Committee on 28 March 2024. This text still has some points to be interpreted, but these will be clarified by decrees currently being pre - pared. This text, like the Pilot Regime, will be tested for a period of three years, during which JONUM will have to notify the ANJ of their oper - ations. In essence, this new regime will impose new obligations on these players, ranging from combating money laundering and the financing of terrorism to protecting minors from the risks of addiction. Moreover, strict limitations notably on communication or on the characteristics of the rewards (often NFTs or other crypto-assets) that can be granted to users will be imposed. As French and European law currently stands, NFTs and NFT trading platforms do not fall under any legal regime. However, clarifications from regulators are expected in the coming months, since NFT trading platforms could be subject to AML risks if they remain unregulated.
Directive (EU) 2015/2366 of 25 November 2015 on payment services in the internal mar - ket (PSD2) was transposed into French law in August 2017. PSD2 aimed to modernise pay - ment services in the EU by taking advantage of the emergence of online and mobile banking. The cornerstone of that modernisation is the right to access a bank account to perform ser - vices, eg, to collect and consolidate information on the different bank accounts of a consumer in a single place, or to allow customers to make internet payments without using a credit card (ie, by sending a direct wire transfer from the cus - tomer’s account to the seller’s account). In prac - tice, PSD2’s major contribution to the growth of open banking was the creation of two new cat - egories of payment services under French law (the payment initiation service and the account information service) and the removal of certain barriers which prevented third parties from pro - viding these payment services. Several success - ful French fintech companies, such as Linxo and Lydia, are already providing regulated services under these new categories. On 28 June 2023, the European Commission presented its draft regulation on access to financial data ( “FiDA Regulation” ), which is still under debate. This regulation will complement the Open Banking framework established by the PSD2. It is based on the principle that financial data belongs to the user and stipulates that, at the user’s request, data holders must make this data accessible free of charge, in real-time, con - tinuously and electronically, in accordance with the conditions outlined in the FiDA Regulation. The draft also proposes the establishment of a financial information service provider status,
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