Access to Digital Assets

For an overview of past and upcoming meetings of this prospective project, please click here.

ELI Members who are interested in actively contributing to the development of this project are invited to join the Project's Members Consultative Committee (MCC). Kindly contact the ELI Secretariat to register your interest.

Quick Facts

  • Project Type: Policy or statement of principles
  • Procedure: Regular
  • Adopted: CD 2019/2 (on Projects)(subject to conditions)
  • Project Period: March 2019September 2021

Background

This project follows on from the 'Fiduciary Access to Digital Assets Feasibility Study', which analysed whether the model law in this area, drafted by the US Uniform Law Commission (and taken over by the Uniform Law Conference of Canada), could be used as a starting point for a model law in the EU. The US model law gives 'fiduciaries' (such as personal representatives of decedents' estates) the legal authority to manage, to the extent possible, digital assets and electronic communications in the same way they manage tangible assets and financial accounts. It also gives custodians of digital assets and electronic communications legal authority to deal with the fiduciaries of their users. After some discussion, a conclusion was drawn that this rapidly developing area, by its nature cross-border, would not be served well by a model law. Some EU Member States might alter the model law and some Member States might not even enact it, thus making cross-border problems even more problematic instead of less.

 

Aim

The project not only hopes to facilitate the position of those entitled to digital assets (and in doing so the Project Team will focus on private individuals), but also intends to facilitate the position of those who increasingly have to deal with digital assets in their daily legal practice: particularly judges, notaries and bailiffs. In order to offer an effective approach to solving these problems guiding principles will be drafted, which will propose a firm basis for harmonising the laws of the Member States in such a way: (a) that these laws are based on a common understanding of what is meant by, 'digital assets', 'access to digital assets', etc; (b) which give basic rights to those entitled to such assets; and (c) facilitate the work of legal practitioners when they are confronted with problems surrounding digital assets. Guiding principles, while creating the necessary basic level of uniformity, would, at the same time, leave Member States sufficient leeway on how to implement these, taking into account their differing legal traditions, legal cultures and established legal practices (such as how notaries or bailiffs are to fulfil their tasks).

 

Outcome

Although the Project Team will still look for inspiration in the US and Canadian model laws, this is a self-standing EU project. First a thorough analysis will be made of the various types and modes of 'digital assets'. The Team's focus will be on digital wealth: (a) inherited by heirs; (b) to be managed by a trusted person in the case of its 'owner's' incapacity; (c) the seizure of digital wealth in the interest of creditors; and (d) the use of digital wealth as security for a loan. This will be followed by the actual drafting of guiding principles which would clarify both the position of European citizens holding such assets and facilitate the work of legal practitioners such as judges, notaries and bailiffs, who are more and more confronted with digital assets. 

 

 

 

 

Project Reporters

  • Sjef van Erp
  • Jos Uitdehaag

Project Team Members

  • Pheobus Athanassiou
  • Wian Erlank
  • Sabine Heijning
  • Paul Matthews
  • Thomas Meyer
  • Christopher Mondschein
  • Gabriele Della Morte
  • Chris Odinet
  • Denis Philippe
  • Radim Polčák
  • Albert Ruda
  • Teresa Touriñán

Advisory Committee Members

  • Suzanne Brown Walsh
  • Sergio Cámara Lapuente
  • Peter Lown
  • Donna Molzan

 

Members Consultative Committee

  • Leigh Sagar