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The Impossible Monetary Recognition of Crypto-assets in French Law - The Example of Complementary Local Currencies (CLC) 1/2

By FrenchLegalAspect | FLA | 15 May 2020


The existence of private currencies is not in doubt. However, the regalian conception of money in France, in the strict sense, should not be able to tolerate the existence of other forms of money because of the monopoly of the State . Confronted with this problem, States have the choice between prohibiting or authorising. However, these phenomena, which are essentially small-scale, are not prohibited, as most States opt for implicit tolerance. In France, alternative currencies are recognized to be regulated, especially complementary local currencies (I.). As the other alternative currencies are on a smaller scale, they are not subject to specific regulations, but this is not the case for crypto-assets, which cannot be recognised as a currency because they cannot be banned (II.).


I. COMPLEMENTARY LOCAL CURRENCIES


Recognition of CLCs - In France, alternative currencies, in addition to existing despite the absence of legal tender, are fully-fledged currencies since the law of July 31, 2014 on the social and solidarity economy. This law legally recognises the existence of complementary local currencies and provides a framework for their issue and payment. Since this law, complementary local currencies have become legal tender or at least assimilated to legal tender since they should still not be legal tender. This illustrates the fact that a currency can exist or even be a legal tender without being legal tender even though it is not a foreign currency but a simple private currency, thus greatly reducing the scope of the argument of its absence. Moreover, the solution adopted makes it possible to secure the use of CLCs by providing a framework for their operation. CLCs, like all private currencies, are issued by an operator independent of the State. The legislator subjects them to a regulation that favours regulation over supervision. Under the terms of Article L311-5 of the Monetary and Financial Code, complementary local currency securities may be issued and managed by one of the companies in the social and solidarity economy sector whose sole corporate purpose is to do so.

Non-convertible CLCs - CLCs, like any contractual currency, are so diverse that it is difficult to establish a single regime. Thus, the distinction made is that of convertibility. Most non-convertible CLCs are paper-based securities, which do not allow the currency to be returned. However, this constraint allows them to escape payment services law and leave their issuers outside the status of payment service providers .

Convertible CLCs - On the other hand, convertible CLCs and dematerialised instruments are genuine payment instruments. In this case, they are subject to the rules applicable to payment services or electronic money, or even banking services in the case of issuing cheque forms. Where the instrument is dematerialised and is issued against the remittance of funds, it is electronic money . Thus, a social economy enterprise that wishes to issue additional local currency in the form of convertible notes is in principle subject to banking legislation unless it benefits from an exemption. The same will apply to institutions issuing convertible local currency in scriptural or electronic form. In the latter two cases, the Monetary and Financial Code provides for a so-called limited-network exception that will allow issuers of local currencies to escape the statutes of payment institutions or electronic money institutions in certain cases. If the exempted issuer is not subject to banking status, the instruments issued will remain subject to the rules of the Monetary and Financial Code . These currencies are real alternative currencies.

The legal recognition of CLCs means that they are recognised as payment instruments for currencies, which is why the CMF must be applied. The status of institutions issuing CLCs depends on the characteristics of the currency issued, so that those that are genuine currencies are subject to banking regulations. The status of payment service provider is reserved for electronic money or payment service institutions. In the absence of an issuer, there would be only crypto-active intermediaries. However, platforms exchanging crypto-actively against legal tender currencies are payment service providers, whereas issuers of ICOs should be subject to the intermediary regime in a variety of ways.

 

All my posts are linked each other, so if you don't understand everything or you want to learn more about crypto-currencies in France please check the links below :

 

 

[1] Art. 34, Constitution of 4 Oct. 1958 providing that "the law shall lay down the rules concerning the system for the issue of currency".

[2] Art. 16, L. n° 2014-856, 31 July 2014, relating to the social and solidarity economy, JORF n° 0176, 1 August 2014.

[3] N. Mathey, " La nature juridique des monnaies alternatives à l'épreuve du paiement ", Revue de Droit bancaire et financier n° 6, nov. 2016, dossier 41, par. 20.

[4] Idem, para. 21.

[5] Solution suggested by the ACPR in 2013, which considered that tangible local currencies were not subject to banking regulations since they were neither redeemable nor divisible and did not give rise to any return of change (ACPR, "Les monnaies locales", ACPR Journal 2013, No. 14, p. 14).

[6] R. Zanolli, "Le nouveau cadre juridico-légal des MLC après l'adoption de la loi ESS, avancée et incertitude", in "Rapport Mission monnaies locales complémentaires", p. 63, which refers to infra-bank law for securities covered by Article L311-5 of the Monetary and Financial Code.

[7] N. Mathey, "La nature juridique des monnaies alternatives à l'épreuve du paiement", Revue de Droit bancaire et financier n° 6, Nov. 2016, dossier 41, par. 20.

[8] Art. L314-1, C. mon. fin.

[9] Art. L315-1, C. mon. fin.

[10] N. Mathey, "La nature juridique des monnaies alternatives à l'épreuve du paiement", Revue de Droit bancaire et financier n° 6, nov. 2016, dossier 41, par. 20, which considers that there is a conversion into local currency concomitantly with the issuance of electronic money.

[11] Art. L511-7, II, C. mon. fin.

[12] Art. L521-3, C. mon. fin.

[13] Art. L525-6, C. my. end.

[14] R. Zanolli, "Le nouveau cadre juridico-légal des MLC après l'adoption de la loi ESS, avancée et incertitude," in "Rapport Mission monnaie locales complémentaires," p. 66.

[15] Complementary local currencies include the example of the SoNantes, a currency created by the Caisse de crédit de Nantes, which has not led to the issue of any banknotes and remains totally dematerialized and includes the possibility of obtaining a payment card: [https://sonantes.fr/].

 

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FrenchLegalAspect
FrenchLegalAspect

Writing about crypto-assets in a (mostly french) legal point of view and other stuff.


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