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Author Topic: Bitcoin in France: first legal decision directly related to Bitcoin?  (Read 35514 times)
MagicalTux
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September 04, 2011, 01:46:57 PM
 #1

A few people around here know about the legal drama currently happening in France between us (Tibanne, MtGox and Macaraja, the company representing us in France) and french banks.

A few weeks ago, our previous French bank closed our bank account despite knowing about our activity, which we explained fully before starting. We challenged this decision in court, to which the bank tried to defend itself by saying "Bitcoin is an electronic money, Macaraja is not a bank, therefore it's illegal for Macaraja to be handling this". The court replied that it was not up to the bank to decide this, and ordered the bank to re-open the account.

The bank announced us they would close the account again, and did an appeal. They lost their appeal but closed the account anyway.

We have then brought them once again in front of a court, which this time again decided against the bank.

Court decision (in French): http://demo.ovh.com/en/ec220dc8ec6778a9455fa7c77c991224/

Now, that would be quite boring if there wasn't a little extra this time.


The bank keeps saying "Bitcoin is an electronic money, we saw it on internet. The internet is never wrong." (or something like that) while we have been citing parts of the laws regarding electronic money and how they have a fixed value against a fiat currency, and are issued by a central authority and can be exchanged back for fiat at anytime (that's what the law says).
This time, the court was not able to find a solution for this, so it declared the issue shall be reviewed by a regular court (we were using the court for emergency matters, as not having a bank account is having an enormous negative impact on our business in Europe) starting September 13th.

Chances are it'll take a few weeks/months before a final decision is taken, however starting September 13th, a French court will review the question "Is bitcoin a virtual currency". If it is, it'll be a real pain to handle it (will require a lot of declarations, and bitcoin exchanges operating in France will need to collect KYC-like information on every single customer - not mentionning the fact of being an online wallet will equivalent to be a bank), however if it's not, the question will remain open (we'll just know it's not a virtual currency, which will ease the requirements).

While this is just a decision made in France, under French laws, as the first decision ever taken in the world, it may set a precedent for other countries to look at before ruling on the status of bitcoin on their own.

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September 04, 2011, 01:55:34 PM
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So basically what you're saying is that if we want a functioning exchange, we more or less have to stop telling people it's money?

^_^
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September 04, 2011, 01:59:41 PM
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Aren't there fines for the bank going against the courts decion? So the bank would rather pay fines and dissobey a court order than give you guys a bank account?

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MagicalTux
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September 04, 2011, 02:01:45 PM
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Aren't there fines for the bank going against the courts decion? So the bank would rather pay fines and dissobey a court order than give you guys a bank account?

It wouldn't play good for the bank's image either. They opened back a new account already, however it'll take a few days until we receive the access card for online access and can resume normal activity.

So basically what you're saying is that if we want a functioning exchange, we more or less have to stop telling people it's money?

What matters is not what you say, but what the law says.

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September 04, 2011, 02:07:54 PM
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What matters is not what you say, but what the law says.

Okay, but if the law comes out in your favor, all the people saying "Bitcoin is money" are basically not telling the truth?

How much harder would it be for you to do what you do, if the court comes back and says it is money? Because if I'm not mistaken, that would be the favorable outcome for everyone who's not an exchange, right? Everyone else here, it sounds like, would really love for a court anywhere to rule "yep, it's money" so that all the people saying "Bitcoin isn't money, no one recognizes it as money except a couple hundred libertarian nutters" will finally shut up.

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MagicalTux
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September 04, 2011, 02:21:06 PM
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What matters is not what you say, but what the law says.

Okay, but if the law comes out in your favor, all the people saying "Bitcoin is money" are basically not telling the truth?

How much harder would it be for you to do what you do, if the court comes back and says it is money? Because if I'm not mistaken, that would be the favorable outcome for everyone who's not an exchange, right? Everyone else here, it sounds like, would really love for a court anywhere to rule "yep, it's money" so that all the people saying "Bitcoin isn't money, no one recognizes it as money except a couple hundred libertarian nutters" will finally shut up.

If bitcoin is an electronic currency, it means we will have to report to the different countries of origin of our customers the identity of anyone buying, selling or owning bitcoins, how much they own, etc. just like banks are doing in most countries.
Not mentioning that exchange or online storage of bitcoins would require to be a bank, which involves a lot of fees and time (can take up to 5 years to create one). Banks as we know can do that as they run fractional reserve and can spend the money you put with them, but bitcoin won't allow that (it's here to prevent this kind of nonsense from happening).

It would also make transit of bitcoin between countries subject of customs declaration requirement, and a lot of more crap that would be bad for everyone.


Bitcoin is not a money, it's bitcoin. Don't try to interpret it with current laws, we'll most likely need a new set of laws to accommodate the way it works and the anonymity required.

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September 04, 2011, 02:25:51 PM
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A few weeks ago, our previous French bank closed our bank account despite knowing about our activity, which we explained fully before starting. We challenged this decision in court, to which the bank tried to defend itself by saying "Bitcoin is an electronic money, Macaraja is not a bank, therefore it's illegal for Macaraja to be handling this". The court replied that it was not up to the bank to decide this, and ordered the bank to re-open the account.


I'll be extremely interested to read the Court's decision (not the summary civil court one, but the later one). The relevant part of the Directive 2009/110/EC (Electronic Money Institutions Directive) reads:

2. "electronic money" means electronically, including magnetically, stored monetary value as represented by a claim on the issuer which is issued on receipt of funds for the purpose of making payment transactions as defined in point 5 of Article 4 of Directive 2007/64/EC, and which is accepted by a natural or legal person other than the electronic money issuer;"


Your best defence is to claim that you are not the issuer.

However, that would still not solve your problems in Europe, as you may still need to register as a credit institution in order to take deposits and keep accounts. You actually may be better off as an electronic money institution than as a credit institution.
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September 04, 2011, 02:26:26 PM
 #8

Thanks for that answer, it helps a lot.

Maybe if this doesn't go in your favor (from what I've read that seems unlikely), look at starting a "bank" in Switzerland? Tongue

^_^
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September 04, 2011, 02:28:49 PM
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Not mentioning that exchange or online storage of bitcoins would require to be a bank, which involves a lot of fees and time (can take up to 5 years to create one).

Not true. Where I live (Bucharest/Romania) there are dedicated exchange houses which are not banks. You go in, give cash, get cash in another currency. I've seen these in other countries.
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September 04, 2011, 02:30:04 PM
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I'll be extremely interested to read the Court's decision (not the summary civil court one, but the later one). The relevant part of the Directive 2009/110/EC (Electronic MOney Institutions Directive) reads:

2. "electronic money" means electronically, including magnetically, stored monetary value as represented by a claim on the issuer which is issued on receipt of funds for the purpose of making payment transactions as defined in point 5 of Article 4 of Directive 2007/64/EC, and which is accepted by a natural or legal person other than the electronic money issuer;"

Your best defence is to claim that you are not the issuer.

However, that would still not solve your problems in Europe, as you may still need to register as a credit institution in order to take deposits and keep accounts. You actually may be better off as an electronic money institution than as a credit institution.

We are basing our defense on the fact Bitcoins are not issued for money, but issued ("created" or "mined") for "free" (in exchange of a specific work, in fact, but anyone can have their computer do it and expect to have bitcoins within a more or less long timeframe). Because of this, one bitcoin (or 0.00000001 bitcoin) has no defined value.

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September 04, 2011, 02:45:43 PM
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Not mentioning that exchange or online storage of bitcoins would require to be a bank, which involves a lot of fees and time (can take up to 5 years to create one).

Not true. Where I live (Bucharest/Romania) there are dedicated exchange houses which are not banks. You go in, give cash, get cash in another currency. I've seen these in other countries.

Those still need to be licensed (and are legally treated as a bank in most countries).

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Anduril
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September 04, 2011, 02:45:55 PM
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I'll be extremely interested to read the Court's decision (not the summary civil court one, but the later one). The relevant part of the Directive 2009/110/EC (Electronic MOney Institutions Directive) reads:

2. "electronic money" means electronically, including magnetically, stored monetary value as represented by a claim on the issuer which is issued on receipt of funds for the purpose of making payment transactions as defined in point 5 of Article 4 of Directive 2007/64/EC, and which is accepted by a natural or legal person other than the electronic money issuer;"

Your best defence is to claim that you are not the issuer.

However, that would still not solve your problems in Europe, as you may still need to register as a credit institution in order to take deposits and keep accounts. You actually may be better off as an electronic money institution than as a credit institution.

We are basing our defense on the fact Bitcoins are not issued for money, but issued ("created" or "mined") for "free" (in exchange of a specific work, in fact, but anyone can have their computer do it and expect to have bitcoins within a more or less long timeframe). Because of this, one bitcoin (or 0.00000001 bitcoin) has no defined value.

Yes, that would definitely be a good argument. However, it all depends on how they read the Directive's definition, as mining could be considered value issued on receipt of funds, it depends on whether they consider that the cost of issuing the value is more than 0, which technically it is (depreciation and electricity have monetary value).

I still believe that your best argument is to state that you are not the ones issuing the money.

I am still very interested in how you intend to operate in Europe regardless of the decision, as technically you would be a regulated financial institution because of what you do. European financial markets are highly regulated, as I'm sure you are discovering.
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September 04, 2011, 02:49:18 PM
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Bitcoin is not a money, it's bitcoin. Don't try to interpret it with current laws...
The state will naturally try to interpret it with current laws. If you don't want to irritate the state, stop scratching it.
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September 04, 2011, 02:49:26 PM
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Not mentioning that exchange or online storage of bitcoins would require to be a bank, which involves a lot of fees and time (can take up to 5 years to create one).

Not true. Where I live (Bucharest/Romania) there are dedicated exchange houses which are not banks. You go in, give cash, get cash in another currency. I've seen these in other countries.

These are regulated in the EU, and you need a licence to operate one. Moreover, Romania is a recent addition to the EU, so it is possible that the relevant legislation is just being implemented (accession countries had a grace period to implement legislation).
MagicalTux
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September 04, 2011, 02:55:03 PM
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Bitcoin is not a money, it's bitcoin. Don't try to interpret it with current laws...
The state will naturally try to interpret it with current laws. If you don't want to irritate the state, stop scratching it.

In Japan we will most likely see new laws and new regulations adapted to bitcoin (nothing is set yet, talks are still in progress). Other countries could see the same thing if current laws are deemed "not enough".

Anyway if you just read the law, Bitcoin is not a virtual currency.

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September 04, 2011, 03:12:01 PM
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Thanks Mark for the update!

Bitcoin are most probably not money under any existing law but more or less digital collectibles with their value entirely determined by supply and demand. See https://blogdial.wordpress.com/2011/08/03/bitcoins-are-baseball-cards/ for a good writeup.

According to this view, you shouldn't have to comply to any additional regulations other than if you would operate an online exchange for say, Magic: The Gathering playing cards Wink
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September 04, 2011, 03:17:10 PM
 #17

This is actually mayor news!!!  Shocked

A court of law saying BTC is fine is a great step!

Can we get the name of the bank? It wouldn harm you more to let people know the bank doing this against our community.

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September 04, 2011, 03:24:21 PM
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Very interesting, thanks for the post Tux. I think the phrase, "Bitcoin is a protocol" should be used ad nausem.

This whole question of whether Bitcoin is legally defined as money is a double-edged sword. If it is defined as money, then it lends legitimacy (not that it needs it). If it's not defined as money, it can remain more anonymous and more disconnected from current financial regulations.

And indeed, if Bitcoin is defined as online currency due to the fact it has market value and is traded in exchange for things, then WoW gold must also be online currency. Indeed, WoW gold even has a central issuer.

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September 04, 2011, 03:27:31 PM
 #19

Mark, if the court does decide in favor of Bitcoin being a currency, will you give account holders a period of time to withdraw funds before enforcing KYC requirements, or should concerned individuals remove their funds ahead of the court decision?

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September 04, 2011, 03:33:14 PM
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Fascinating!

I'd speculate that that bitcoin will be declared as a "virtual currency" by the court. But this is not very educated guess (since I know next to nothing about French law).

In any case I wish you guys the very best of luck with this. Please keep us informed how it goes.

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