учебный год 2023 / Haentjens, Harmonisation Of Securities Law. Custody and Transfer of Securities in European Private Law

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6.3CUSTODY OF BOOK-ENTRY SECURITIES 6.3.1 Introduction

Between the Second World War and the dematerialisation of the 1980s, bearer securities were held at three levels: by the investors themselves, by intermediaries, and by the CSD. With the dematerialisation, the first layer was eliminated and a two-layered structure remained.40 But the direct holding of titres nominatifs was retained and the current French system of securities custody therefore consists of both direct and indirect elements. Titres nominatifs are now registered in securities accounts maintained by the issuer or its mandatary, while dematerialised titres au porteur are registered in securities accounts held by financial intermediaries and the CSD. Thus, since all securities are dematerialised, both the direct and the indirect holding of securities involve the registration of accountholders’ interests and securities transfers by book-entries in securities accounts.

In addition, both financial intermediaries and issuers may have recourse to third parties to maintain their securities accounts via an agreement of mandat de conservation (custody mandate). The third party’s/mandatee’s obligation to separate the mandator’s own assets from the mandator’s clients’ assets is part of this agreement, while in the CSD’s accounting, the mandatee’s own assets should be separated from his clients’ assets, i.e. the assets of the mandator and his clients.41 Furthermore, the mandator’s liability vis-à-vis his clients remains unaffected by the mandate.42 As a result, the number of (sub- )custodians and thus the length of the chain of custody has no legal consequences with respect to the investor’s securities entitlements.

According to the AMF, tenue de compte conservation or intermediated custody of securities involves, for the intermediary concerned, the duty to register financial instruments in the name of their entitlement holder, and to preserve the corresponding assets.43 As a general rule, any institution may offer that service,44 but securities accounts may only be maintained by the categories of institutions listed in art. L. 542-1 C. mon. fin.45

40The very few sorts of securities which remained un-dematerialised, however, can still be held by investors; Article L. 211-4 fourth paragraph C. mon. fin.

41Articles 332-4 and 332-39 Règlement Général AMF.

42Article 332-40 Règlement Général AMF. Cf. DE VAUPLANE & BORNET (2001), no. 99-1 and CLÉMENT in CNCT 1997 Report, 251.

43Art. 312-6 Règlement Général AMF.

44Art. L. 531-1 C. mon. fin. ‘Main services’, on the other hand, may only be offered by admitted participants to the CSD; art. L. 321-1 C. mon. fin. (the service of securities custody is statutorily considered a ‘secondary’ service; art. L. 321-2 C. mon. fin.).

45This article has only recently been enacted by the Financial Security Act no. 2003-706 of 1 August 2003.

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In the following sections, several aspects of securities custody will be discussed. First, some further introductory remarks on the structure of intermediated securities custody in France will be made, followed by a discussion of the custody of non-dematerialised bearer securities and titres nominatifs, mainly in relation to intermediated securities custody. Then, some specific aspects of intermediated securities custody will be addressed, such as (the classification of) the accountholder – intermediary relationship, (the classification of) the nature of accountholder interests and intermediary insolvencies and the treatment of shortfalls.

6.3.2 Structure of intermediated custody

In general, the AMF supervises the custody and transfer of securities in France, and a CSD can perform its task only after the AMF’s consent.46 Eligible for admission to the CSD’s central system of custody are investment firms being subject to the Investment Services Directive,47 the Banque de France, issuers whose securities are admitted to Euroclear France and national and international CSDs.48 The admission of intermediaries to the CSD’s system is supervised by the AMF and all intermediaries have to comply with the Règlement Général AMF. These rules regulate both the relationship between the intermediaries and the CSD, and the intermediaries’ maintaining of securities accounts for their clients.49 Other than by the Règlement Général AMF, the relationship between intermediaries and the CSD is also regulated by the Règles de Fonctionnement d’Euroclear France, which is approved by the AMF.50

Eligible for admission by Euroclear France are all French securities as defined under Articles L. 211-1(1), L. 211-1(2) and L. 211-1(3) C. mon. fin.,51 while foreign securities may be admitted as long as they are compatible with French book-entry securities.52 Furthermore, securities are admitted ex officio if they are listed at a regulated French exchange and are

46Art. L. 621-7 VI(2) C. mon. fin. Although the law thus provides for the possibility of multiple CSDs, Euroclear France is France’s only CSD at the time of writing.

47Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field (OJ L 141/1).

48Cf. art. 2.1 Règles de Fonctionnement d’Euroclear France and the listing by DE VAUPLANE

& BORNET (2001), no. 224.

49Especially book V, title IV and book III, title III, chapter II, respectively.

50Art. L. 621-7 VI(2) C. mon. fin. See also AUCKENTHALER (2004), 287-289.

51Article 1.1 Règles de Fonctionnement d’Euroclear France. See also Articles 3.1 and 3.2 Règles de Fonctionnement d’Euroclear France and Articles 540-1 and 312-6 Règlement Général AMF.

52DE VAUPLANE & BORNET (2001), no. 226. Euroclear France is the custodian of foreign nondematerialised securities which are listed at Euronext Paris; DE VAUPLANE & BORNET (2001), no. 227.

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transferable by book-entry only, pursuant to a rule of law or issuing rules. Derivatives cannot be admitted to the central system of custody.53 Custody of securities which are not admitted to the central system takes place more or less similarly to the custody of securities which are deposited with Euroclear France.54

RIPERT & ROBLOT have described the CSD’s three main tasks as follows:55 to assure the circulation of securities, to guarantee the security of the system as a whole and to control the regularity of book-entries in accounts.56 Euroclear France assures the circulation of securities by facilitating securities transfer by book-entry between clients of different financial intermediaries. For this purpose, all admitted intermediaries maintain omnibus accounts in their own names with the CSD, which accounts represent all securities the intermediaries’ clients are entitled to.57 Euroclear France guarantees the security of the custody system as a whole by monitoring, per category of securities, whether the intermediaries’ omnibus accounts match the total amount of securities issued, and the CSD registers this total in a special account (compte Émission).58 Finally, the CSD controls the regularity of their participants’ bookkeeping through monitoring, per intermediary, whether the intermediaries’ omnibus accounts match the total of securities to which the intermediaries’ clients are entitled.

Thus, Euroclear France is responsible for the proper functioning of the settlement system, which further includes ensuring the irrevocability of transfers, all in accordance with the Règlement Général AMF and under the supervision of the AMF.59 Also, the CSD facilitates the payment of dividends and interests by the issuer to the financial intermediaries concerned, while dividends and interests on titres nominatifs purs are theoretically paid directly by the issuer to the investor. But as the maintenance of the issuer’s register or securities accounts are usually mandated to one or more financial intermediaries, the payment of interests and dividends is also most often performed by these intermediaries.60

53DE VAUPLANE & BORNET (2001), no. 99-2.

54See RIPERT & ROBLOT (1996), nos. 1818-1822. Not-admitted titres nominatifs of small companies are subject to a special regime.

55RIPERT & ROBLOT (1996), no. 1813. Cf. BONNEAU & DRUMMOND (2005), no. 231.

56For a full listing of the CSD’s tasks, see art. 540-1 Règlement Général AMF.

57Separated from these accounts are the accounts representing the intermediaries’ own securities; art. 332-4 Règlement Général AMF.

58RIPERT & ROBLOT (1996), no. 1816 and BONNEAU & DRUMMOND (2005), no. 231.

59Arts. L. 330-1 and L. 621-7 VI(3) C. mon. fin.

60See arts. 5 and 38 of Decree no. 55-1595 of 7 December 1955. See also RIPERT & ROBLOT (1996), no. 1815, RIPERT & ROBLOT (1996), no. 1801 and cf. DE VAUPLANE & BORNET (2001), no. 100 and BONNEAU & DRUMMOND (2005), no. 231.

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6.3.3Non-dematerialised titres au porteur and titres nominatifs

Historic background

Under the influence of German legal thinking, French doctrine in the late 19th century deemed bearer securities to incorporate investors’ rights vis-à- vis the issuer.61 In the same vein, the issuer’s register came to be considered as incorporating investors’ rights, or at least to provide absolute proof of the investors’ ownership.62 As a consequence, both titres nominatifs and titres au porteur were considered to incorporate, as res corporales (movable tangibles), investors’ rights against the issuer.

Because the dematerialisation of the 1980s was originally intended to constitute only a technical measure, doctrine remained to considered securities as res corporales. A credit entry in a securities account or a credit balance was therefore considered to provide the accountholder with possession of his securities, but because of the highly fictional nature of this approach, it is fiercely contested in the legal literature.63 To nondematerialised bearer securities, however, it is still generally thought to be applicable.

Non-dematerialised titres au porteur

The overwhelming majority of titres au porteur that remain in existence in a physical form are foreign securities and euro-bonds, immobilised in the vaults of Euroclear France.64 The rest consist of the very few categories of titres au porteur that were excluded from the general dematerialisation, and these securities may still be held by investors themselves.65

When bearer certificates are deposited with an intermediary so as to be replaced by a securities account, the individuality of the certificates is lost and so is the entitlement holder’s right of ownership.66 However, because the civil code provisions on dépôt régulier (depositum regulare) are applied to the investor – intermediary relationship by law, neither the depositee/intermediary, nor the CSD becomes the owner of the securities deposited.67 Moreover, the deposit does not affect the depositor’s prior rights

61DE VAUPLANE & BORNET (2001), no. 47-1 and see supra, Ch. 3.2.1.

62DE VAUPLANE & BORNET, no. 47-1.

63See DE VAUPLANE & BORNET (2001), no. 47-2 and the references provided there, and BONNEAU & DRUMMOND (2005), no. 90. But cf. MARTIN (1996) and MAFFEI (2005).

64Euroclear France 2002 Disclosure Framework, p. 5.

65See supra, n. 16.

66RIPERT & ROBLOT II (1976), no. 1764.

67Art. 11 of Decree no. 49-1105 of 4 August 1949. It reads: ‘(…) the interprofessional institution’s [i.e. the CSD’s, MH] obligations and responsibility of restitution vis-à-vis its participants, as well as these participants’ [obligations and responsibility of restitution, MH] vis-à-vis the depositors are regulated by the provisions regarding the custodian’s obligations as stated by the Civil Code [i.e. the provisions on dépôt].’ The services which an intermediary

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against the issuer and other parties, and the accountholder retains a right of revendication in the custodian’s insolvency.68 Yet a construct of coownership is generally rejected, and the Code civil does not recognise a depositum regulare of fungibles that involves the loss of a depositor’s ownership, as it requires that a custodian should deliver the deposited assets in specie upon the depositor’s request; Art. 1932 C. civ.69 The approach of the French legislator has therefore not been considered to be very coherent.70

Directly held, non-dematerialised bearer securities are transferred by physical delivery, or by endorsement in the case of order certificates; art. L. 511-8 C. com. Indirectly held, non-dematerialised titres au porteur that have been deposited with the CSD, are transferred through debit and credit entries in the transferor’s and transferee’s securities accounts, respectively. Provided that the transferee has acted in a bona fide manner, the Chambre commercial de la Cour de Cassation (Commercial Chamber of the Supreme Court, ‘Cass. com.’) has held that a defect in the causa of the transfer does not invalidate the transfer of ownership.71

Moreover, transferees, as well as pledgees, of such securities are virtually fully protected against competing claims by third parties asserting a revendication right. In theory, these parties, who may have been dispossessed by loss or fraud, can successfully assert a revendication right, but they must first be able to identify the third party transferee (which is highly unlikely in the anonymised context of the present stock markets), and then have to repay the bona fide transferee the price which the latter has

paid, provided the securities were bought at a stock exchange; art. 2280 C. civ.72

A pledge on non-dematerialised titres au porteur is created in the same way as a transfer of ownership is effectuated, i.e. by physical delivery if the securities concerned are held by investors themselves, and through credit and debit entries in the securities accounts of, respectively, the pledgee and pledgor, if the securities concerned are held by Euroclear France.

provides, other than safe deposit, are considered in the light of an additional contract of mandat (mandate); RIPERT & ROBLOT (1996), no. 1789.

68See art. 12 of Decree no. 49-1105 of 4 August 1949.

69See also infra, s. 6.3.4.

70RIPERT & ROBLOT II (1976), nos. 1764.

71Cass. com., 18 October 1994, Bull. Joly, December 1994, 1296, no. 362.

72In such instance, the dispossessed owner thus can challenge an accountholder’s right of ownership with either Euroclear France or with the issuer (upper-tier attachment), and the challenge results in the ‘freezing’ of the securities concerned; Decree no. 56-27 of 11 January 1956. All transactions prior to the challenge, on the other hand, remain unaffected, as arts. 2279 and 2280 C. civ. apply. See RIPERT & ROBLOT (1996), no. 1778.

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Titres nominatifs

Legally, the dematerialisation has not had much effect on the custody of titres nominatifs, although they are no longer registered in the issuer’s register, but are now credited to securities accounts maintained by the issuer or its mandatary. The most important change, however, is that titres nominatifs used to be transferred through the deletion of the transferor’s name in the issuer’s register, and a subsequent new issue of the same quantity and quality of securities to the transferee.73

Although, strictly speaking, titres nominatifs were thus de-registered and reissued, such a ‘transfer’ was considered to constitute a transfer in the general private law sense, which implies that ownership is transferred the moment parties agree on the price and object of the sale; arts. 1591 and 1583 C. civ.74 However, prior to the change of the entitlement holder’s name in the issuer’s books (whether or not this is a register of securities accounts), a transfer of ownership is not effective, i.e. it cannot be asserted against the issuer and third parties.

As with non-dematerialised titres au porteur, imperfections regarding an agreement to transfer titres nominatifs do not invalidate its proprietary consequences, since from a property law perspective, it is the issuer who effectuates the de-registration and re-issue (or debit and credit entries), and the issuer has no material interest in the transferor and transferee’s contractual relationship.75 But in contrast to non-dematerialised titres au porteur, it is seriously debated and uncertain whether a transferee of titres nominatifs takes free of all third party claims, most notably of a dispossessed verus dominus.76 In addition, between transferor and transferee, the transferee’s acquired interest remains subject to challenge.77

A pledge on titres nominatifs is created through a transfert de garantie, registered in the issuer’s books; art. L. 521-1 C. com.78 Although the Cour de Cassation has held that a pledge may be performed in any other way,79

73RIPERT & ROBLOT (1996), nos. 1761, 1764 and 1765.

74Cf. Cass. com., 23 November 1993, Dr. sociétés, February 1994, p. 18, no. 41.

75RIPERT & ROBLOT (1996), no. 1765.

76See RIPERT & ROBLOT (1996), no. 1766 and BONNEAU & DRUMMOND (2005), no. 91. Affirmative: REYGROBELLET (1999), 314-315, MARTIN (1996) and MAFFEI (2005). See also infra, s. 6.3.5.

77See, e.g., Cass. com., 24 January 1989, Bull. Joly, March 1989, p. 266, no. 85; Paris, 25 October 1991, Dr. sociétés, 1992, no. 1138, as cited by J.-C. HALLOUIN in his annotation of Cass. com., 18 October 1994, Bull. Joly, December 1994, p. 1296, no. 362 and Cass. com., 22 October 2002, Rev. sociétés, July-September 2003, p. 511, all cases in which ownership was successfully challenged by counterparties.

78Technicalities are specified in art. 35, paragraph 3 of Decree no. 55-1595 of 7 December 1955.

79Cass. Com. 5 November 1977, RTD com., 1979, p. 259. Cf. art. L. 521-1 C. com., which determines that ‘a pledge of securities may also be created by registration by the issuer.’

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legal authors generally maintain that a transfert de garantie can only be effectuated on the issuer’s book, i.e. similar to a transfer of ownership.80

6.3.4 Accountholder – intermediary relationship

As mentioned above, the dematerialisation of almost all French securities led to the re-evaluation of the central notions of French securities law, including the relationship between the accountholder and intermediary.81 On the obligations of an intermediary vis-à-vis his clients/accountholders, however, general consensus exists. In the following section, these obligations will be discussed first, after which the classification of the accountholder – intermediary relationship will be examined.

The Code monétaire et financier clearly defines an intermediary’s obligations, and further refers to the Règlement Général AMF provisions on the maintenance of securities accounts.82 These rules combined, an intermediary’s main obligations can be listed as follows:83

-An intermediary has a general obligation to preserve the securities in its custody.84 The rule that intermediaries are forbidden to use and transfer the securities to which their clients are entitled (prohibition

de tirage sur la masse) is generally considered to result from that obligation; art. L. 533-7 C. mon. fin.85 and art. 332-4(2) Règlement Général AMF.86 A violation of this prohibition is considered an

abus de confiance (abuse of trust) and sanctioned according to criminal law; art. L. 314-1 Code pénal (Criminal Code).87

80See RIPERT & ROBLOT (1996), no. 1768 and infra, s. 6.5.3.

81Cf. BONNEAU & DRUMMOND (2005), no. 232.

82Arts. L. 533-1 et seq. C. mon. fin. Art. L. 533-9 C. mon. fin. refers to the Règlement Général AMF, which addresses securities custody law mainly in its book III, title III, Chapter II. That Chapter contains the so-called cahier des charges du teneur de comptes conservateur

(book of obligations of a securities account provider). Other provisions are to be found in, e.g., arts. 321-69, 321-71, 321-74 and 321-75, which represent technical requirements for the custody agreement between the financial intermediary and accountholder.

83Cf. MAFFEI (2005), 243 and see GAVALDA & STOUFFLET (2002), no. 751 on the custody of non-dematerialised securities.

84Cf. art. 312-6 Règlement Général AMF.

85Art. L. 533-7 C. mon. fin. reads: ‘Investment firms and – in some cases – (legal) persons mentioned in article L. 421-8 protect the investors’ rights of ownership as to the financial instruments of which they maintain the accounts. They may not use these securities for their own account but with the investor’s explicit consent’. Cf. art. 10 Investment Services Directive (Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field (OJ L 141/1)). With the investor’s explicit consent, a custodian’s use of deposited assets thus remains possible under a contract of prêt de consommation. Cf. GHOZI in CNCT 1997 Report, 199-200 and see infra, s. 6.5.2.

86DE VAUPLANE & BORNET (2001), no. 979. Cf. also art. 332-6 Règlement Général AMF .

87See DE VAUPLANE & BORNET (2001), nos. 1144-1150.

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-An intermediary is obliged to prevent the loss of the assets in its custody and maintain stringent book-keeping; art. 332-4(1)

Règlement Général AMF.

-An intermediary should inform its clients of corporate actions, so

that they can enforce the rights attached to their securities, such as voting rights; art. 332-4(1) Règlement Général AMF.88

-An intermediary must be able to return the securities in its custody at all time. With regard to dematerialised securities, effectuation of this obligation involves a transfer of securities to another intermediary; art. 332-4(3) Règlement Général AMF. But an intermediary has a retention right concerning these securities if its client(s) do not fulfil their obligations; cf. art. L. 431-4 C. mon fin.

-An intermediary should separate its own assets from its clients’ assets, both on its own books, and in its accounts with the CSD (an obligation which also applies to the intermediary that has mandated the maintenance of securities accounts to a sub-custodian); art. 332- 4 Règlement Général AMF.

Further to the obligations just listed, it has been questioned how the accountholder – intermediary relationship should be classified. In the following, four possible private law classifications are examined, all of which have been suggested as the most appropriate classification in legal literature. First, three contrats nommés will be examined, and finally a contrat innommé, or sui generis contract.89 But whatever the classification may be, freedom of contract is reduced to an important extent, as the conclusion of a custody contract with an intermediary is mandatory and its content is almost non-negotiable. Such a contract is called a contrat imposé (compulsory contract).90

Securities custody has traditionally been viewed in the light of the contract of dépôt, and thus considered to be regulated by arts. 1915 et seq. C. civ. That position has been grounded on statute and case law,91 but these sources date either from the pre-dematerialisation period, or refer to a single criminal law judgment, which has been argued to have no value in any private law discussion.92 Other than the safekeeping of securities, the services rendered

88See also DE VAUPLANE & BORNET (2001), no. 99-4 and nos. 978-983.

89See, e.g., MALAURIE, AYNÈS & GAUTIER (2001), nos. 5 et seq. and HUET (2001), no. 8.C. and the references provided there.

90RIPERT & ROBLOT (1996), no. 1789 and BONNEAU & DRUMMOND (2005), no. 232. Cf. MALAURIE, AYNES & GAUTIER (2001), no. 21. This conclusion led some authors to oppose the qualification of the investor – custodian relationship as a contract altogether. However, the fact that (statutory) law determines some aspects of a contract, does not exclude a contract from being qualified as such; GHOZI in CNCT 1997 Report, 209. Cf. BÉNABENT (2004), no. 4.

91Art. 11 of Decree no. 49-1105 of 4 August 1949 (cited supra) and Cass. crim., 30 May 1996, Bull. Joly Bourse 1996, p. 628, no. 100. See also, e.g., Cass. com., 14 December 1965, Banque, 1965, p. 211.

92DE VAUPLANE & BORNET (2001), no. 975. Contra MAFFEI (2005), 244.

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by an intermediary in its capacity as the investor’s representative (e.g. in the context of the intermediary’s relationship with the CSD or issuer) are traditionally viewed in the light of the contract of mandat.93

The general private law contract of dépôt has four characteristics that are relevant to the securities custody context:94 the assets deposited must be choses mobilières (movable assets); art. 1918 C. civ., a deposit must occur through tradition réelle (physical delivery); art. 1919 C. civ., the custodian has an obligation of safekeeping concerning deposited assets; art. 1915 C. civ. and the custodian has an obligation of restitution concerning the deposited assets in specie; art. 1932 C. civ. Many agree that the main characteristic of dépôt, i.e. the safekeeping/preservation of assets deposited, evidently applies to securities custody.95 But it is highly contested whether dematerialised securities could classify as movable assets.96 A custodian’s obligation of restitution, on the other hand, arguably accords with a securities intermediary’s obligation of restitution, albeit that dematerialised securities cannot be delivered in specie.97 Finally, art. 1930 C. civ. provides that under the contract of dépôt, a custodian may not dispose of the deposited assets without explicit permission by the depositor, which clearly corresponds with the just described prohibition of tirage sur al masse.98

The fungible and dematerialised character of securities, on the other hand, leads to evident incompatibilities with dépôt. First, securities’ fungibility (whether dematerialised or not), and their subsequent commingling in a custodian’s pool, renders them impossible to be delivered in specie at the depositor’s request.99 Second, because of their dematerialisation, securities cannot be physically deposited.100 Art. 1919 second paragraph C. civ., however, provides for the possibility of a fictional deposit, but that provision only applies when a custodian already holds the assets to be deposited.101 In addition, it has been argued that because dépôt does not require the individualisation of deposited assets, but rather the segregation of the assets deposited from the assets already in custody, dépôt would be applicable to the custody of dematerialised securities.102 That position assumes that

93The combination of contracts dépôt and mandat is not uncommon to French private law; see HUET (2001), no. 33503 and BÉNABENT (2004), no. 721.

94DE VAUPLANE & BORNET (2001), no. 969. Cf. BENABENT (2004), no. 716.

95See, e.g., MAFFEI (2005), 244.

96See MALAURIE, AYNÈS & GAUTIER (2001), no. 861. Accord MARTIN (1996), 47 et seq. and HUET (2001), no. 33127; contra REYGROBELLET (1999), 311 and BÉNABENT (2004), no. 764.

97Cf. GHOZI in CNCT 1997 Report, 197.

98See also GERMAIN in CNCT 1997 Report, 175.

99See, e.g., BONNEAU (2003), no. 765, BONNEAU & DRUMMOND (2005), no. 232 and PELTIER in CNCT 1997 Report, 166.

100BONNEAU & DRUMMOND (2005), no. 232.

101See GHOZI in CNCT 1997 Report, 182.

102GHOZI in CNCT 1997 Report, 188, 198 and 201. Cf. also BONNEAU & DRUMMOND (2005), no. 232.

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although fungible among each other, dematerialised securities are not commingled when credited to separate securities accounts, which does not seem to be generally accepted.103

It has also been argued that the accountholder – intermediary relationship classifies as dépôt irregulier (depositum irregulare), because that contract does not require the eventual restitution of the assets deposited in specie, but rather restitution of the same quality and quantity, which is more compatible with the custody of fungible securities.104 However, dépôt irregulier also involves a transfer of ownership of the deposited assets to the custodian and the latter’s full power of disposal over the securities deposited,105 which is obviously contrary to the prohibition of tirage sur la masse discussed above. Furthermore, art. 1921 C. civ. determines that (the contract of) dépôt, i.e. both dépôt régulier and irrégulier, must result from a mutual agreement. The deposit of dematerialised securities, however, does not result from a voluntary act resulting in a mutual agreement, but from a statutory provision, viz. art. L. 211-4 C. mon. fin. Neither form of dépôt has therefore been argued to be applicable to the accountholder – intermediary relationship.106

The accountholder – intermediary relationship has further been classified as louage d’ouvrage (services agreement), also known as contrat d’entreprise

(business agreement), supplemented with a contract of mandat.107 To classify as a contrat d’entreprise, a contractor must be under the obligation to do or make something through factual acts in a relationship of independence,108 while under mandat, a mandatary is given the authority to perform certain legal acts as a representative of the mandator.109 Although these general definitions certainly apply to the accountholder – intermediary relationship, they do not address the most important characteristics of securities custody, viz. the preservation of assets, the prohibition of tirage sur la masse and the intermediary’s obligation of restitution.110

103But see BONNEAU & DRUMMOND (2005), nos. 232 and 661. BOUÈRE & DE VAUPLANE in CNCT 1997 Report, 260-261 argue that dematerialised securities are neither individualised nor indivualisable, as securities are not individualised in the omnibus accounts with the CSD. In their view, securities only become individualised after transfer (cf. art. 1585 C. civ.). Contra AUCKENTHALER (2004), 19, who considers securities to be utterly nonindividualisable.

104E.g. BÉNABENT (2004), no. 764 and GAVALDA & STOUFFLET (2002), no. 752.

105See MALAURIE, AYNÈS & GAUTIER (2001), no. 886, HUET (2001), no. 33501 and BÉNABENT (2004), no. 761.

106BOUERE & DE VAUPLANE CNCT 1997 Report, 265.

107Arts. 1787 – 1799-1 C. civ. See MALAURIE, AYNÈS & GAUTIER (2001), no. 881.

108BÉNABENT (2004), no. 479.

109Cf. MALAURIE, AYNÈS & GAUTIER (2001), no. 709 on the differences between mandat and contrat d’entreprise. See also BONNEAU (2003), no. 765 and BONNEAU & DRUMMOND (2005), no. 232.

110Cf. GHOZI in CNCT 1997 Report, 206-208.

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