ROMANIA Law and Practice Contributed by: Alexandru Stanescu, Simina Negulescu, Anca Popan and Mihai-Cristian Huială, Lexters
and outsourcing standards, DORA compliance, con- flicts of interest and client disclosure. Banks and pay- ment institutions will also need to factor in approvals and restrictions specific to BNR, while investment firms and funds should consider ASF rules and any applicable investor eligibility thresholds. 2.4 Token Issuance White Paper and Legal Explanation Filing Under MiCA Title II, an offeror or person seeking admission to trading of crypto-assets other than ARTs or EMTs must draw up, notify and publish a crypto- asset white paper before the offer to the public or admission to trading, unless an exemption applies. The MiCA white paper is a public statement of fact and risk, subject to civil liability, update duties and registration in the publicly accessible ESMA register. From a filing perspective, the white paper must be prepared in a machine-readable format using inline XBRL (iXBRL) in accordance with the applicable ESMA implementing technical standards. Under Article 8 (4) MiCA, the white paper must be accompanied by a legal explanation addressed to the national competent authority. This is a substantive, non-public document demonstrating that the token falls within MiCA and is not a financial instrument, deposit, fund unit, securitisation position or other excluded instrument, and is not an ART or EMT. The analysis tracks the classification elements set out in 2.2 Crypto-Asset Regulatory Frameworks and should address the token’s rights, economic function and (where relevant) the absence of any stabilisation The white paper notification and Article 8 (4) legal explanation described above are not required where one of the MiCA exemptions applies. These exemp- tions are modelled on the public offering exemptions under the Prospectus Regulation and include: • offers addressed solely to qualified investors; • offers to fewer than 150 natural or legal persons per member state; • offers where the total consideration does not exceed EUR1 million over 12 months; • genuinely free offers; mechanism. Exemptions
• mining or validation rewards; and • operational utility tokens and limited network tokens. The exemptions in Article 4 (2) and (3) of MiCA cease to apply as soon as the offeror, or any person act- ing on its behalf, communicates an intention to seek admission to trading. This extends to informal chan- nels: communications through social media, investor materials, term sheets or roadshow presentations may be sufficient to trigger loss of exemption. Notification Versus Authorisation For Title II tokens, the white paper must be notified to the competent authority at least 20 working days before publication. The authority may request infor- mation or raise concerns, but formal approval is not required and responsibility for the content remains with the offeror or person seeking admission to trad- ing. Once duly notified and published in one member state, the white paper enables the offeror to offer the crypto-asset or seek its admission to trading across the EU without repeating the notification procedure in each member state (see 3.4 Passporting ). The supervisory posture for stablecoins differs from Title II tokens: • ART issuers must obtain authorisation from the competent authority, and the white paper is subject to approval rather than mere notification; and • EMT issuers must be authorised as a credit institu- tion or electronic money institution, and the white paper must be notified but is subject to specific content requirements on redemption rights and reserve assets. In both cases, the issuer must submit a legal opinion confirming that the token does not qualify as a finan- cial instrument, deposit, structured deposit, fund unit, securitisation position or other excluded instrument, and the competent authority assesses the application against prudential, governance and reserve require- ments before the token may be offered to the public or admitted to trading.
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