ROMANIA Law and Practice Contributed by: Alexandru Stanescu, Simina Negulescu, Anca Popan and Mihai-Cristian Huială, Lexters
3.2 Set-Up Requirements Set-up requirements for a Romanian CASP authorisa- tion are those of MiCA, applied locally. The process is substantive: the applicant must be a legal person or other eligible undertaking with a registered office in the EU and effective management in the EU. It must demonstrate the following. Governance and personnel: • at least one director resident in the Union; • members of the management body who are fit and proper, possess appropriate knowledge, skills and experience, and have not been convicted of money laundering, terrorist financing or other offences affecting their good repute; • shareholders or members with qualifying holdings who are of sufficiently good repute; and • staff with the knowledge, skills and expertise nec- essary for the responsibilities allocated to them. Prudential requirements: • Class 1 CASPs (advice, portfolio management, placing, reception and transmission of orders, execution of orders, transfer services): minimum permanent capital of EUR50,000; • Class 2 CASPs (Class 1 services plus custody, exchange of crypto-assets for funds or other crypto-assets): EUR125,000; • Class 3 CASPs (Class 2 services plus operation of a trading platform): EUR150,000; • alternatively, one quarter of the fixed overheads of the preceding year, whichever is higher; and • prudential safeguards may take the form of own funds or an insurance policy covering the relevant territories. The application file must contain, among others: • a programme of operations and business plan; • governance documents and description of internal control mechanisms; • evidence of own funds or insurance policy meeting the prudential requirements; • AML policies, risk assessment framework and business continuity plan; • ICT and security documentation;
• description of client asset segregation procedures; • complaints-handling procedures; • custody policy (where custody services are intend- ed); • operating rules and market abuse detection proce- dures (where a trading platform is intended); and • proof of fit and proper status of management body members and qualifying shareholders. For Romanian applicants, the ASF is expected to be the main authority for CASPs and non-EMT crypto- assets, while the BNR will be relevant for EMTs and for entities already supervised by the BNR, such as banks, payment institutions and electronic money institutions. Because the final Romanian procedure is still pending, applicants should prepare files based on MiCA, ESMA/EBA standards and the draft Romanian allocation of competences. Even if MiCA does not require all staff to be in Roma- nia, a Romanian applicant should be able to demon- strate real decision-making, competent management, compliance capacity, AML personnel, technical over- sight and access to outsourced systems. A project managed entirely from another jurisdiction may face supervisory questions. 3.3 Change of Control Under Article 83 of MiCA, any person intending to acquire or increase a qualifying holding in a CASP so as to reach or exceed the 20%, 30% or 50% thresh- olds, or to make the CASP a subsidiary, must notify the competent authority in writing before the change takes effect. The same obligation applies to any dis- posal or reduction below the 10%, 20%, 30% or 50% thresholds. The competent authority has 60 working days to assess the acquisition; if no opposition is raised, the acquisition is deemed approved. A crypto-asset firm that is also regulated as a bank, payment institution, electronic money institution, investment firm, fund manager or insurance entity may face parallel qualifying holding approval require- ments under the applicable sectoral regime. Transac- tion documents should include regulatory conditions precedent, and buyers should diligence the licence, pending notifications, AML history, client asset seg- regation and any reliance on transitional regimes. A
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