Access to Digital Assets

Access to Digital Assets is a prospective ELI project which 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 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. ‘Fiduciaries’ in the sense of the model law are personal representatives of decedents’ estates, conservators for protected persons, agents acting pursuant to a power of attorney, and trustees. It also gives custodians of digital assets and electronic communications legal authority to deal with the fiduciaries of their users, while respecting the user’s reasonable expectation of privacy for personal communications.

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. A major concern was the possibility that some EU Member States would alter the model law and that some Member States might not even enact it. That would make cross-border problems even more problematic instead of less. A difficulty also proved to be that the terminology of the model law was rooted in the common law tradition, whereas most EU Member States follow the civil law tradition. Nevertheless, the need for convergence between common and civil law should not be ignored, given that several large IT companies are US based.  

Although the project team will still look for inspiration in the US and Canadian model laws, this is a self-standing EU project. That means that, first of all (and this will be done in the first stage of the project) a thorough analysis will be made of the various types and modes of ‘digital assets’ in order to come to a definition which would be workable EU wide, but that would also would fit in globally. This stage will be followed by the actual drafting of rules 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.

The prospective project not only hopes to facilitate the position of those entitled to digital assets, but also intends to facilitate the position of those who more and more frequently 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, an EU directive will be drafted, which will propose a firm basis for harmonizing the laws of the Members States in such a way: (a) that it is based on a common understanding of what, for the purposes of this directive, 'digital assets', 'access to digital assets', etc mean: (b) that gives basic rights to those entitled to such assets; and (c) facilitates the work of legal practitioners when they are confronted with problems surrounding digital assets. A directive, while creating the necessary basic level of uniformity, would, at the same time, leave Member States sufficient leeway on how to implement the rules laid down in that directive, taking into account their differing legal traditions, legal cultures and established legal practices (such as how notaries or bailiffs are to fulfil their tasks). 

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