A token issuer preparing to distribute in France faces a specific legal reality: the Autorité des marchés financiers (AMF) operates one of Europe's most developed optional registration regimes for digital-asset service providers, and its approach to token classification shapes every clause in a sale agreement before a single investor is onboarded. Get the classification wrong, and what was planned as a product launch becomes an unregistered securities offering – with consequences that cross borders and follow the business indefinitely.
Drafting a token sale agreement under the French AMF and PSAN (prestataire de services sur actifs numériques) regime demands more than template adaptation. It requires a prior classification analysis, alignment with the MiCA transition now in effect across the EU, and a document architecture that survives regulatory scrutiny in France and in every jurisdiction where tokens will be distributed. This page sets out the process, the cross-border interaction, and the points where the analysis turns on specific facts.
The French AMF/PSAN regime and why it matters for token sales
The AMF administers France's digital-asset framework, which created an optional PSAN registration – and, for certain activities, a mandatory one – for businesses offering services on digital assets to French residents. Token issuers are not automatically PSANs, but a token sale directed at French investors triggers the AMF's jurisdiction over the offering itself, particularly through its rules on public offers of digital assets and its visa process for token offerings seeking optional regulatory endorsement.
The framework distinguishes between security tokens, which carry rights equivalent to financial instruments and fall under the full securities regime, and utility tokens or other digital assets, which may qualify for the AMF visa track. That distinction is not made at the marketing layer. The AMF assesses the substance of the rights a token confers: profit expectations, governance entitlement, economic exposure to the issuer's performance. A "utility" label on a whitepaper does not settle the classification. We assess that question against the actual rights embedded in the token's smart contract and governing documents before any agreement is drafted.
Under MiCA, which applies directly in France as EU law, the classification analysis now runs on two parallel tracks: the AMF's domestic regime and the MiCA categories of asset-referenced tokens (ARTs), e-money tokens (EMTs), and other crypto-assets. A token that is neither an ART nor an EMT under MiCA and is not a financial instrument under the securities regime may be offered under MiCA rules, including whitepaper and disclosure obligations enforced through the national competent authority – in France, the AMF.
The PSAN regime imposes mandatory registration on businesses providing custody, exchange, or related services to French residents. An issuer that also provides post-sale custody or a secondary exchange function must assess whether its activities cross the PSAN threshold, separately from the offering analysis.Token classification: the threshold question before any agreement is drafted
Classification determines the legal instrument. A token classified as a financial instrument triggers the full French and EU securities law architecture. A token falling outside that definition – but within MiCA scope – triggers the MiCA whitepaper and marketing rules. A token arguably outside both categories still requires careful legal analysis before distribution, because both regimes extend their reach by economic substance, not by how the issuer has labeled the asset.
In our practice, the classification memo precedes the drafting mandate. It sets out the rights the token confers, maps them to the AMF's interpretive framework and the MiCA categories, and produces a reasoned conclusion with its confidence level. That memo becomes the foundation of the sale agreement's representations, the whitepaper's legal section, and the disclosure that sits in every investor communication.
The classification question carries particular weight in a cross-border token sale. A token that passes the French utility analysis may still be treated as a security by the SEC under US law, or as a regulated product under the FCA's financial-promotion rules in the UK. The sale agreement must address distribution restrictions, investor eligibility, and jurisdictional exclusions that reflect the actual classification outcome in each relevant market – not a single global label applied uniformly.
A common structural mistake is drafting the sale agreement before the classification work is complete. We do not begin agreement drafting until the classification memo has been reviewed and the issuer has made an informed decision on the offering's scope and investor base.
What a sound token sale agreement for France must contain
A token sale agreement operating under the AMF/PSAN regime and MiCA carries obligations at three levels: what must be disclosed before the purchase, how the purchase itself is documented, and what ongoing rights and limitations the agreement creates.
At the pre-purchase level, the agreement must cross-reference the applicable whitepaper (or its MiCA equivalent) and ensure that the investor's acknowledgment of receipt is captured. Where the AMF visa has been obtained, the agreement records that fact and the scope of the visa. Where it has not been obtained – and many issuers proceed without seeking one – the agreement's disclosure section must reflect the absence of regulatory endorsement accurately and completely. Omission here is a material defect.
The purchase mechanics must specify the token's technical standard, the delivery mechanics, the conditions to delivery, and the treatment of failed or disputed transactions. For EU-resident purchasers, the agreement must also address the MiCA right of withdrawal where it applies, and the cooling-off period for retail investors where triggered.
The ongoing rights section defines what the token represents after delivery: access rights, governance participation, economic participation, or none of these. This section must mirror the classification conclusion. If the token's rights are structured as pure access rights with no economic entitlement, the agreement cannot contain provisions that would reintroduce economic substance – for example, a repurchase right tied to issuer revenue, or a profit-sharing formula embedded in governance mechanics.
Investor eligibility and jurisdictional restrictions are among the most operationally important clauses. The agreement must specify which jurisdictions are restricted, how that determination was made, and what verification procedures the issuer uses to enforce the restriction. A blanket "US persons excluded" clause that is not backed by actual verification procedures will not survive scrutiny by a US regulator examining whether reasonable measures were taken.
How does the AMF visa process work for a token offering?
The AMF visa for a token offering is an optional endorsement that signals the issuer has submitted a whitepaper and related documents to the AMF and received approval. It does not guarantee the success of the offering or constitute investment advice, and the AMF makes that limitation explicit in the form of a standard disclaimer that must accompany all communications referencing the visa.
The process requires submission of the whitepaper in the form prescribed by the AMF, including a description of the issuer, the offering terms, the token's characteristics, the rights it confers, the use of proceeds, the risks, and the legal and technical information the AMF specifies. The AMF reviews the submission for completeness and regulatory compliance. It does not assess the commercial merits of the offering.
Timeline for the visa process varies depending on the completeness of the submission and the AMF's current workload. In our cross-border practice, we advise issuers to allow adequate lead time before any planned sale date and to treat the review period as a minimum – incomplete or ambiguous submissions extend it materially. The AMF may request additional information or amendments, each of which resets part of the clock.
The visa is not a MiCA whitepaper approval. Under MiCA, a crypto-asset whitepaper for tokens other than ARTs and EMTs is notified to the competent authority (the AMF, in France) but does not require prior approval before publication. The two processes co-exist during the transition period, and an issuer with an existing AMF visa must assess whether separate MiCA compliance steps are required.
In a recent matter, a technology company approaching a token sale for a software access token had already prepared a whitepaper in English that met its own internal standards. We reviewed it against both the AMF visa requirements and the MiCA notification framework, identified six areas of non-conformity – including an undisclosed secondary liquidity mechanism that created economic exposure the classification had not addressed – and produced a compliant revised version with a parallel bilingual French translation required for AMF submission. The revised agreement and whitepaper were submitted and the offering proceeded on schedule.
To assess whether your token offering requires an AMF visa, a MiCA notification, or both, contact OBOLUS at info@oboluslaw.com. The process above describes the standard path. Your entity structure, token mechanics, and investor base shape the analysis in ways that a template review will not surface.
How does the cross-border dimension affect agreement drafting?
A token sale from a French issuer – or from a non-French issuer offering to French investors – is rarely contained within a single jurisdiction. The issuer may be a French SAS or SA, or may be a foreign entity using a French subsidiary for regulatory purposes. Investors may be EU residents, UK residents, US persons, or distributed across multiple jurisdictions with different classification outcomes for the same token. The banking layer – where subscription proceeds are received and held before conversion or deployment – adds a third axis.
The choice of governing law and dispute resolution forum in a token sale agreement is not a boilerplate decision. A French-law agreement subjects the parties to French civil law, including mandatory consumer-protection provisions that apply regardless of any contractual exclusion attempt. An English-law agreement offers a well-developed commercial litigation framework and a body of digital-asset case law. A specific free-zone law – such as ADGM law for a token structure domiciled in Abu Dhabi – offers yet a different commercial certainty profile. The choice must reflect the issuer's actual entity structure, the investor base, and the enforcement environment the issuer expects to rely on.
The cross-border distribution restriction regime requires specific attention for US persons. The sale agreement must contain representations from the investor regarding their status, the issuer must maintain procedures to verify those representations, and the restrictions must be technically implemented at the token level where possible. A jurisdictional restriction that exists only in the agreement text, without verification or technical enforcement, is a documented risk point that any competent regulator will examine first.
Banking for token sale proceeds presents persistent challenges. French retail banks have, in a number of cases we have observed, declined to open accounts for token issuers or to receive subscription proceeds. The structure of the banking solution – whether through a French EMI, a foreign account, or an escrow arrangement – must be addressed in the sale agreement itself, in the timeline for delivery, and in the force-majeure and termination provisions. An issuer that raises proceeds it cannot deploy because banking fails has a legal problem, not just an operational one.
If your offering structure crosses multiple jurisdictions or your banking layer is unresolved, write to info@oboluslaw.com before you commit to a sale date. If a prior application stalled or an account was closed, a second read can surface the structural reason and the route back.
AML, Travel Rule, and investor verification in a French token sale
An issuer conducting a token sale in France operates under the FATF framework as transposed into French law and, where it holds a PSAN registration, under the AMF's AML requirements for PSANs. Even without a PSAN registration, the issuer has AML obligations if the offering structure brings it within the definition of a relevant service provider.
The Travel Rule – the obligation under FATF Recommendation 15 to pass originator and beneficiary data with a virtual-asset transfer – applies to PSANs and to the transfer leg of a token sale where the token constitutes a virtual asset. In practice, this means the sale agreement must contemplate the issuer's or its PSAN counterpart's Travel Rule obligations at the point of token delivery, and the investor onboarding process must capture the data required to satisfy those obligations.
Investor verification – KYC (know-your-customer) and AML screening – is not a checkbox exercise. The verification process must be proportionate to the offering's risk profile. A public sale with small minimum purchase amounts and no accredited-investor requirement demands a different verification depth than a private placement to institutional investors. The sale agreement must specify which verification standard applies, what happens where an investor fails verification after submission, and how refunds are handled in that scenario.
In our cross-border practice, we regularly advise on the interaction between French AML requirements and the investor verification obligations that apply in the investor's home jurisdiction. A French issuer selling to German, Italian, or Polish investors must ensure that the verification standard satisfies the most demanding applicable national transposition of the EU AML directives, not merely the French minimum.
Self-assessment checklist for a French token sale agreement
Before engaging counsel to draft or review a token sale agreement for a French offering, an issuer should be able to answer the following questions clearly. Each unanswered question represents a drafting risk.
- Has the token been classified as a financial instrument, an ART, an EMT, another crypto-asset under MiCA, or a non-MiCA asset? On what legal basis?
- Is an AMF visa being sought? If not, why not, and how will the absence be disclosed to investors?
- Has a MiCA whitepaper notification been assessed? Is the notification required before sale?
- What jurisdictions are restricted? What verification procedures enforce those restrictions?
- Where will subscription proceeds be held, and in what form? Has the banking provider confirmed its willingness to receive token sale proceeds?
- What AML and Travel Rule obligations apply to the issuer or its PSAN counterparty at the point of delivery?
- What governing law and dispute resolution forum have been chosen, and do those choices reflect the issuer's actual entity and investor base?
- Has the MiCA transition timeline been assessed for any existing French PSAN registration or AMF visa?
Which issuer profile should choose which approach?
The right agreement architecture depends on the issuer's profile, the token's classification, and the target investor base. Three profiles capture most of the situations we encounter.
Profile A – Early-stage software issuer, utility token, EU retail distribution. This issuer's primary obligations run through the MiCA whitepaper notification and the AMF's domestic rules. The sale agreement is built around the MiCA disclosure baseline, a retail-focused withdrawal and refund mechanism, and a tight jurisdictional restriction clause that excludes US persons and any jurisdiction where the token would require separate registration. Timeline from classification memo to signed agreement is typically a matter of weeks, not months, if the classification work is clear. The key risk is underestimating the French-language disclosure requirements and the AMF's expectation of bilingual documentation.
Profile B – Established company, token carrying governance and economic rights, mixed institutional and retail distribution. This issuer faces a serious classification question – the governance and economic rights may tip the token into the financial instrument category under the AMF's substantive analysis. If that conclusion holds, the offering requires the full securities law architecture, not the MiCA or AMF visa track. If the classification comes out on the non-security side by a narrow margin, the agreement must be drafted conservatively, with rights carefully bounded to avoid the creep toward economic substance. Timeline is longer, the documentation burden is heavier, and the cross-border restriction analysis is more demanding.
Profile C – Non-EU issuer, targeting French and broader EU investors, seeking AMF visa as a marketing signal. This issuer must establish either a French legal presence or a relationship with a French PSAN to access the visa track. The agreement structure must account for the issuer's foreign law status and the interface between foreign law and French mandatory provisions. Banking is a particular challenge: French banks have shown persistent reluctance to service foreign-domiciled token issuers, and the escrow or EMI solution must be confirmed before the sale date is fixed. Allied counsel in the relevant jurisdiction – whether the issuer's home market or a key investor jurisdiction – must be engaged to confirm local law compliance.
Related at OBOLUS
- Token Offerings & Securities practice – end-to-end legal counsel for token issuers across classification, structuring and distribution
- Exchange listing legal counsel – listing strategy and regulatory analysis for institutional token issuers seeking secondary market access
- Cross-chain bridge legal risk – legal risk assessment for operators with multi-chain token distribution or bridge exposure
FAQ
Is my token a security?
The answer turns on the rights the token confers, not the label the issuer has chosen. Under the AMF's analysis and the MiCA framework, a token that grants profit expectations, governance rights with economic effect, or direct exposure to the issuer's financial performance is likely to be treated as a financial instrument. Classification requires a substantive legal memo examining the token's actual mechanics – smart contract, governance documents, whitepaper, and economic model – against the applicable test. We assess classification on substance, not marketing.
Do I need a MiCA whitepaper?
Under MiCA, a whitepaper is required for public offers of crypto-assets in the EU unless a specific exemption applies – for example, where the offer is addressed only to qualified investors, where the total consideration across the EU is below the MiCA threshold over a twelve-month period, or where the token falls within a defined exclusion. For tokens that qualify as ARTs or EMTs, separate and more demanding authorization and whitepaper requirements apply. The applicable obligation depends on the token's classification and the offering's scope. An existing AMF visa whitepaper is not automatically a compliant MiCA whitepaper.
How should an airdrop be structured legally?
An airdrop is not outside legal classification rules simply because no direct payment is made. If the recipient takes a marketing or promotional action in exchange for tokens – or if the tokens carry economic or governance rights – the distribution may be treated as a public offer or as a regulated service under applicable rules. A legal review should assess whether the airdrop constitutes an offer under MiCA, whether it triggers AMF jurisdiction, and whether recipient eligibility and jurisdictional restrictions need to be applied and documented. The mechanics, documentation, and AML obligations should be confirmed before distribution.
OBOLUS is an independent digital-asset law boutique acting only for businesses. We advise exchanges, custodians, token issuers and funds on licensing across 70+ jurisdictions, on disputes and on-chain asset recovery across 25+ forums, and on the tax, banking and compliance that sit around them. We assess token classification against the substance of rights, not the marketing label, and we structure licensing, banking and tax as one mandate rather than three disconnected workstreams. Digital assets are the whole of our practice. To discuss your situation, contact info@oboluslaw.com.
By Roman Levitt, Technology & DeFi Counsel – specialising in token structuring, smart-contract legal risk and cross-border digital-asset offerings including French AMF/PSAN and MiCA compliance.
This publication is general information about the law and does not constitute legal advice. It is not a substitute for advice tailored to your circumstances. OBOLUS accepts no liability for action taken or not taken on the basis of this material. For advice on your situation, contact info@oboluslaw.com.