ROMANIA Law and Practice Contributed by: Alexandru Stanescu, Simina Negulescu, Anca Popan and Mihai-Cristian Huială, Lexters
Classification based on the Crypto-Asset’s Characteristics Not all crypto-assets should be treated in the same way. A crypto-asset that qualifies as a finan- cial instrument, fund unit, security, payment instru- ment or e-money token (EMT) will be governed by the relevant special regime. For example, EMTs are deemed electronic money under MiCA, while Law No 210/2019 defines electronic money as electronically stored monetary value representing a claim against the issuer, issued on receipt of funds and accepted by persons other than the issuer. Therefore, an EMT is better analysed as a tokenised form of electronic money and holder claim, with redemption rights, rath- er than merely as a generic intangible asset. Ownership and Control For crypto-assets, ownership is inferred from control – specifically, control of the private key or of the relevant custodial account. This remains a practical presump- tion, not an absolute rule. A person may control a wal- let but hold the crypto-assets for another person, may have obtained them unlawfully, or may be subject to contractual restrictions that override the blockchain record. In custodial structures, MiCA strengthens the analysis by requiring a custody agreement, client posi- tion records and segregation of client crypto-assets from the CASP’s own estate. Transfer of Ownership Technical transfer should be distinguished from legal transfer. On-chain finality occurs when the transaction is validated under the rules of the relevant network, but legal transfer under Romanian law still requires a valid title, authority to dispose of the asset and an effective agreement between the parties. For regu- lated or wrapped tokens, the off-chain layer may be equally important. Transfers may need to be reflect- ed in issuer records, corporate registers, custodial records or contractual documentation, depending on the rights attached to the token. Collateral Arrangements Security over crypto-assets is possible in principle, most likely as a movable mortgage over intangible movable assets or over the rights attached to them. In practice, the arrangement should be documented through a security agreement and, where relevant,
registered with the National Register for Movable Pub- licity. The main difficulty is that registration does not by itself give control of private keys, while control of private keys does not by itself solve publicity, prior- ity and enforcement against third parties. Creditors should therefore use a combination of contractual restrictions, custody or control arrangements, valu- ation mechanics and clear enforcement procedures. 1.2.2 Access to Banking Banking and payment services are available to cryp- to-asset businesses in Romania as a matter of law and workable as a matter of practice, provided the applicant comes prepared. In practice, banks apply enhanced due diligence to crypto-asset clients, reflecting AML, sanctions and reputational considera- tions that are common across the EU. This is a man- ageable challenge rather than a structural barrier, and it is one that is improving as the sector matures and MiCA authorisation becomes the market standard. Crypto-asset businesses should expect enhanced due diligence, requests for AML and transaction-mon- itoring policies, beneficial ownership documentation and information on fiat flows connected to crypto- asset activity. The most effective approach is to prepare a compre- hensive banking file before approaching institutions, covering the product perimeter, client categories, fiat flow model, risk appetite, restricted jurisdictions and suspicious transaction reporting process. 1.2.3 ESG/Sustainable Finance Romania has no additional local ESG regime specifi- cally applicable to crypto-assets. The relevant require- ments come primarily from MiCA and, where applica- ble, general EU sustainable finance rules. MiCA requires the crypto-asset white paper to include mandatory figures on the consensus mechanism’s energy consumption and its principal adverse environ- mental impacts. CASPs face parallel disclosure obli- gations. The standards are particularly demanding for proof-of-work or other energy-intensive mechanisms, but the obligation is technology-neutral and applies through standardised EU disclosure templates and technical standards.
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