ROMANIA Law and Practice Contributed by: Alexandru Stanescu, Simina Negulescu, Anca Popan and Mihai-Cristian Huială, Lexters
referenced tokens (ARTs) are crypto-assets that pur- port to maintain a stable value by reference to another value or right, or a combination thereof, including one or more official currencies. All other crypto-assets, including most utility tokens, are subject to the gen- eral regime under Title II of MiCA, unless an exemption applies. Most non-fungible tokens (NFTs) sit outside MiCA under Article 2 (3) on the basis of uniqueness and non-fungibility; fractionalising an NFT into fungi- ble units brings it back inside the regime. Regulated Activities The regulated activities refer to:
refused, unless a member state adopts a shorter peri- od. Romanian materials have not indicated a material- ly different approach, but final Romanian implementa- tion remains pending. For a detailed discussion of the pending Romanian MiCA implementation legislation, including the draft emergency ordinance and the des- ignation of competent authorities, see 1.1.1 Evolution of Uses of Blockchain . 2.3 Regulated Firms and Legal Wrappers In Romania, regulation attaches to the entity perform- ing the regulated activity, not to the commercial struc- ture chosen by the promoter. Interposing a fund, SPV, foundation or other legal wrapper between the inves- tor and the underlying crypto-asset activity changes the legal relationships but leaves the activity itself in scope. If the activity requires authorisation, someone in the chain must hold it. Legal Wrappers and the Regulatory Analysis Where investors acquire units in a collective invest- ment undertaking that allocates capital to crypto- assets, the fund manager will need to comply with fund regulation, and the entity actually managing or custodying the crypto-assets may still need to be authorised under MiCA. Similarly, where a token rep- resents a share, a debt instrument or a right to repay- ment, the issuer and any intermediary may fall within the scope of MiFID II, the Prospectus Regulation or market abuse rules, regardless of how the offering is labelled. This is especially relevant for real world asset projects. A promoter may set up an SPV to hold real estate, receivables or private company participations, and then issue tokens linked to that SPV. The commercial logic may be sound, but the token can still qualify as a security, a fund interest, a crowdfunding instru- ment or a MiCA crypto-asset depending on the rights it confers. The legal wrapper is therefore a factor in the analysis, not a way around it. Regulatory Consequences for Regulated Firms Regulated firms that gain exposure to crypto-assets, whether directly or through a wrapper, should expect to address the full range of applicable requirements, including prudential treatment, internal mandate lim- its, custody and valuation arrangements, governance
• offers to the public; • admission to trading; • ART or EMT issuance; and • crypto-asset services.
Crypto-asset services include custody, trading plat- form operation, exchange, order execution and trans- mission, advice, portfolio management and transfers. Governance tokens are classified by the rights they confer rather than by protocol label: a token granting economic rights, dividends or buyback entitlements may be a financial instrument under MiFID II Annex I, while a pure voting-rights token sits under MiCA Title II. Prohibitions and Retail Protections Holding and transferring crypto-assets is not prohib- ited under Romanian law. The relevant prohibitions are activity-based: carrying out a regulated crypto- asset service without authorisation, or offering ARTs or EMTs to the public without the appropriate issuer status. Separately, misleading retail holders, breach- ing AML obligations and engaging in market abuse each give rise to their own consequences under the applicable rules. On the retail side, MiCA introduces specific protections for holders, including disclosure obligations, marketing standards and, in certain cas- es, a right of withdrawal. Transitional Rules Under Article 143 (3) MiCA, entities that provided crypto-asset services in accordance with applicable national law before 30 December 2024 may continue until 1 July 2026 or until authorisation is granted or
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