After authorizing the registration and transfer of unlisted securities through distributed ledgers1 and drafting optional regulatory frameworks for token issuances and crypto-asset trading platforms2, France now aims at ensuring that crypto-assets issuers and intermediaries can seamlessly access basic banking services.
Three amendments to the Draft Law No. 1008 on growth and companies’ transformation (the Loi PACTE) have been adopted by the national assembly on this matter and would guarantee that crypto-assets issuers and intermediaries will not be arbitrarily forbidden to open bank accounts.
France would, once the Loi PACTE is definitely adopted, be the first jurisdiction to guarantee an access to bank accounts to crypto stakeholders, thus removing one of the main barriers they face when carrying out their business.
The three amendments to the Loi PACTE are articulated as follows:
- Amendment
No. 1914 amends article L. 312-23 of the French Monetary and
financial code (MFC) to provide that credit institutions shall
establish objective, non-discriminatory and proportionate rules to
determine whether token issuers that have been granted an
optional visa by the financial regulator (the Autorité
des marches financiers or AMF) can access deposit and payment
accounts, it being provided that their access to those banking
services shall be efficient and unencumbered ;
- Amendment
No. 2480 extends this right of access to a bank account to
crypto-asset intermediaries that have been granted a mandatory or
optional (as the case may be) visa by the AMF. It also provides
that credit institutions refusing to grant access to a bank account
to a crypto-asset issuer or intermediary shall justify such refusal
with the AMF and/or the banking authority (the Autorité
de contrôle prudentiel et de resolution or ACPR).
- Amendment No. 1882, as amended by sub-amendment No. 2853, states that an implementing decree will detail these provisions and, notably, provide the legal remedies available in case of refusal by a credit institution. As discussed during the public debate in the national assembly, those remedies will include appeal of the refusal in front of the Banque de France and French courts.
This pragmatic move is expected to reinforce Paris’ attractiveness, as crypto stakeholders often consider access to bank accounts to be the leading impediment for the development of their businesses.
As early as 2014, a crypto-assets trading platform indeed successfully argued in front of the Banque de France that it should benefit from the right to a bank account set forth in article L. 312-1 of the MFC. The Banque de France ruled in favor of the trading platform and ordered the commercial bank to open a bank account in its name. This decision was later confirmed by French courts3. Despite this ruling, crypto-assets issuers and intermediaries are still prevented by most credit institutions from opening bank accounts in their books.
These provisions would moreover create a strong incentive for crypto-asset issuers and intermediaries to obtain an optional visa from the AMF instead of deciding to remain unregulated, as the right to access bank accounts will be tied to such visa. The fact that crypto-assets are intangible and thus cross-border by nature make it easier for stakeholders to avoid regulatory framework and practice forum shopping; in this context, France is taking a pragmatic approach to crypto-asset regulations, opting for voluntary compliance rather than "hard law" prohibitions.
Footnotes
1 Order No. 2017-1674 dated Dec. 8, 2017
2 Article 26 of the Loi PACTE
3 Cour d'appel de Paris, Pôle 1 – chambre 1, 26 août 2011, n° 11/15269 ; Cour d'appel de Paris, 26 septembre 2013, n° 12/00161
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