Click & Bid: can NFTs be sold at public auction in France?

In 2022, we wrote that a public auction of NFTs was not possible in France. The Act of 28 February 2022 on the regulation of the art market removed that obstacle. The questions now are who may organise such sales, and at what point a marketplace becomes, without meaning to, an auction house.

Article first published in 2022, rewritten on 25 October 2026.

What the law changed

Our 2022 analysis rested on a narrow reading of the French Commercial Code: voluntary public auctions covered only tangible movable property, which excluded a digital token. Since 2 March 2022, Article L. 320-1 of the Commercial Code subjects to the public auction regime sales “of movable property”, “subject to the specific provisions governing the sale of certain intangible movable property”. The text therefore also covers intangible property, including NFTs, and excludes only property governed by a special rule.

Article L. 321-1 adds that such sales may concern new goods as well as second-hand goods. An NFT offered for sale by the artist who created it may therefore be auctioned, provided the advertising for the sale states that it is a new good. The same Act renamed the French auction regulator, the Conseil des ventes volontaires, which is now the Conseil des maisons de vente.

What is a public auction?

The classification depends neither on the word “auction” nor on the technique used. Article L. 320-2 of the Commercial Code sets out four elements:

• a third party acts as agent of the owner;
• that third party offers the item and knocks it down to the highest bidder;
• the knock-down follows a bidding process open to the public;
• that bidding process is transparent.

The successful bidder acquires the item and must pay its price.

Two models follow. In the first, an auction house receives a mandate from the owner, organises the sale and knocks the item down. This is a public auction, reserved for auction operators supervised by the Conseil des maisons de vente. Several auction houses have sold NFTs since 2022, alongside digital art sales.

In the second model, a platform connects sellers and buyers, provides the bidding tool and takes a commission, without receiving a mandate or knocking down items itself. The seller sets the terms and the smart contract executes the sale to the highest offer. Without a third-party agent who knocks the item down, this is not a public auction but online brokerage. Most NFT marketplaces work this way.

When a marketplace crosses the line

The boundary moves with the platform’s actual role. The risk of reclassification grows where it:

• selects the lots and presents them as its own sales;
• receives a mandate to sell from sellers;
• sets the reserve price or the closing of the sale itself;
• presents itself to the public as the organiser of auctions.

Conversely, a platform that leaves the seller in control of the parameters, takes no mandate and clearly describes its role as a technical intermediary stays on the brokerage side.

A reclassified platform carries on an activity it has not declared, and the sales it has made become open to challenge. The analysis must therefore come before launch: terms and conditions, sales journey, interface wording and the role of the smart contract.

The status of the NFT itself

The form of the sale does not settle the nature of the item sold. The MiCA Regulation excludes from its scope crypto-assets that are unique and not fungible with other crypto-assets. That exclusion gives way where tokens are issued in large series, fractionalised or carry rights that bring them close to an investment. A lot sold by an auction house may thus fall under MiCA if the token is not truly unique. We set out these criteria on our page NFTs and marketplaces: which regime?

Auction operators are also themselves subject to anti-money laundering obligations where the transaction, or a series of linked transactions, amounts to EUR 10,000 or more (French Monetary and Financial Code, Art. L. 561-2, 14°). An NFT sale settled in crypto-assets then requires them to identify the buyer and document the source of funds, as for any other lot.

Before launching a sale

For an auction house, three points should be settled in advance:

• the description of the item sold: the token, the associated digital work and the intellectual property rights transferred or not;
• the classification of the token under MiCA;
• settlement and custody arrangements, in particular the use of an authorised provider where the price or the token passes through a wallet held on behalf of the buyer.

For a marketplace, the priority is to check that its model is brokerage rather than a public auction, then to align its terms and conditions and its interface with that choice.

ORWL Avocats advises auction houses, artists and platforms on the classification of their NFT sales and on drafting their contractual documentation.