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The nature of virtual currency remains uncertain. In any case, the object is very attractive, in particular because its nature, presented as "new", implies that its handling is not regulated.

This allows, in particular for individuals or start up, to issue "tokens" to offer them in exchange of funds, by the "initial coin offerings (ICOs)" technic, tokens acquired by investors, without being banking institutions, or borrowing money , nor issuing capital securities.

Operators demand that this behavior be recognized in its novelty and be recognized as being governed only by the contract and the general principles of loyalty, commitment and information, because what it is not prohibited is permitted while what is not regulated is freely organized by the parties who consent to it.

As media report, the Banking Regulator of China, has just decided otherwise. It has decided that the fundraising by individuals or companies by means of virtual currency will now be banned.

The question is whether other Regulatory Authorities could do the same.

Read below.

Regulation of the digital world, we agree on its necessity, we talk about it a lot but it is difficult to do it.

The stakes are multiple: management of innovation, protection of people, treatment of different sorts of powers, future of the human being, the Politics and the Judge being like a bullet that ricochets between these 4 subjects.

It then rediscovers that the first "regulators" are the Governments and that the first modality of the Regulation Law  is the taxation.

Notably in the digital field and even more so in the face of GAFA.


Indeed, the 4 American companies, Google, Apple, Facebook and Amazon, admit the need for rules but propose self-regulation or co-regulation. These would include not only their own behavior, but also those of others, including the fight against terrorism. Maybe, when one is stronger than the States, he should substitute himself for their core business....

Undoubtedly being dispossessed of the regalian, Europe today demands "accounts" to the GAFA in the literal sense of the term. Indeed, the French and German governments will table in September a tax proposal specific to the GAFA, the fruit of which will come back to the countries where they earn their income.

Concerned companies replied that in the tax system everyone has the right to be skilled and to organize at the best, so long as one does not fall into the abuse. In accordance with this legal conception, the French administrative high Court (Conseil d’État) has just recalled it in an important decision to their benefit.

In August 2017, the French Minister of Economy and Finance, Bruno Lemaire, justified  the reiteration of his will to tax them, raising this issue at European level in the name of "distributive justice", the Law being defined as what gives everyone his share. This is a strong but dangerous argument, for while it is true that in the very function of taxation, correlated with public finances, the redistributive function is essential, tax optimization becomes staggering.

In a more convincing and regulatory way, this measure of equity is presented as correlated to the construction of the European digital market. It is an economic conception. To the extent that European taxation is still embryonic, its link with such a construction would make it possible to see in vivo the strength of the tax tool in Regulation Law, more than ever distant from Competition Law.

It is in this context, and because the European Digital Market must be built at forceps, since the GAFA will benefit from it, but also must participate in its construction, that such an investment sharing is justified.