Access to Digital Assets

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 if you would like to join the MCC of this project or if you have any questions concerning the project.

Quick Facts

Project Type: Principles (in different instalments)
Procedure: Regular
Adopted: CD 2019/4 on Projects (Approval of a New Project on Access to Digital Assets)
Project Period: March 2019
2022

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 aims to clarify and facilitate the position of those claiming an entitlement to digital assets and all those who increasingly have to deal with digital assets in their daily legal practice, in particular, judges, lawyers, notaries public, public registrars and enforcement agents. The aim of the project is to help bring coherence to, and promote the harmonisation of, existing laws and legal concepts relevant for access to digital assets.

 

Outcome

Originally, the project’s goal extended to identifying the various categories of digital assets, the types of persons who may wish or need to have access to them, and the settings in which questions of access could arise, followed by a more category-specific approach with a focus on digital assets as security for credit, digital assets under succession, the matrimonial or registered partnership regime applicable to them, and enforcement against digital assets.

As the work of the Project Team matured, it became apparent that, in the case of a financial institution requiring access to, for instance, crypto-assets where these are offered as security for a loan, a different approach was needed compared to the situation of an heir who seeks to gain access to crypto-assets or other digital objects of value that are part of a deceased’s estate or a judicial enforcement officer wishing to enforce a judgment. As work on the project progressed, developments accelerated, resulting in the decision not to present a full project report but, rather, to present its results in instalments.

The first phase, the ELI Principles on the Use of Digital Assets, which focus on instances where private parties, whether natural or legal, contractually agree to create a security interest in a digital asset, were approved by the ELI Membership in February 2022 and are available for download here.

Further work on the broader project is underway.

 

Case Studies 

For some illustrative examples that the Access to Digital Assets project seeks to tackle, please click here.

Events, Publications and Other Activities

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

Click here to download the first instalment of the project, the ELI Principles on the Use of Digital Assets as Security.

Project Reporters

  • Sjef van Erp
  • Jos Uitdehaag

Project Team Members

  • Phoebus Athanassiou
  • Wian Erlank
  • Sabine Heijning
  • Teemu Juutilainen
  • Paul Matthews
  • Thomas Meyer
  • Christopher Mondschein
  • Gabriele Della Morte
  • Chris Odinet
  • Denis Philippe
  • Radim Polčák
  • Teresa Rodríguez de las Heras Ballell (as of January 2022)
  • Albert Ruda
  • Teresa Touriñán

Advisory Committee Members

  • Suzanne Brown Walsh
  • Sergio Cámara Lapuente
  • José Antonio Castillo Parrilla
  • Richard Frimston 
  • José Llopis Benlloch
  • Matthias Lehmann (Assessor)
  • Peter Lown
  • Donna Molzan
  • Reiner Schulze (Assessor)
  • Christiane Wendehorst (Assessor; until November 2021)
  • Aneta Wiewiórowska-Domagalska (Assessor)

Members Consultative Committee

  • Jason Allen
  • Marina Androulaki
  • Cristina Argelich-Comelles
  • Austrian Chamber of Civil Law Notaries (represented by Stephan Matyk-d'Anjony)
  • Arvind Babajee
  • Curia of Hungary (represented by Mónika Gáspár; until June 2021)
  • David Dolidze
  • Moustapha Ebaid
  • European Law Students' Association Austria (represented by Anh Nguyen)
  • European Union of Judges in Commercial Matters (represented by Rainer Sedelmayer)
  • Iryna Dikovska
  • Karen Lynch Shally
  • Lineke Minkjan
  • Dimitrios Moustakatos
  • Domenico Rosani
  • Cécile Sainte-Cluque
  • School of Law, University of Hull (represented by Gonzalo Vilalta Puig)
  • Society of Trust and Estate Practitioners (represented by Leigh Sagar)
  • Ferenc Szilágyi
  • Aura Esther Vilalta Nicuesa
  • University of Latvia (represented by Vadims Mantrovs)
  • Western University 'Vasile Goldis' Arad - Romania, Faculty of Law (represented by Christian Alunaru)

Observers

  • European Commission (represented by Maria Vilar Badia and Veronica Williams)
  • Spanish Land Registrars (represented by Silvino Navarro)