ROMANIA Law and Practice Contributed by: Alexandru Stanescu, Simina Negulescu, Anca Popan and Mihai-Cristian Huială, Lexters
change of control during the grandfathering period is particularly sensitive where the business has not yet obtained full MiCA authorisation. 3.4 Passporting A MiCA authorisation granted by the Romanian com- petent authority is valid throughout the EU and EEA, enabling the holder to provide authorised services in other member states via the MiCA passporting pro- cedure. To passport, the CASP notifies the Romanian competent authority of the host member states, the services it intends to provide and the intended start date; the competent authority communicates that information to the host member states within ten working days, and the CASP may begin providing services shortly thereafter. The passport does not, however, remove all local law questions. The CASP must remain within the scope of its authorised services, comply with host state con- sumer protection, AML and advertising rules where applicable, and separately assess any activities that fall outside MiCA. A Romanian MiCA authorisation will not cover payment services, electronic money issu- ance, investment services, fund management or con- sumer credit, unless those activities are independently authorised. Cross-border marketing into Romania is permitted, but the applicable rules depend on the legal classi- fication of the product being marketed rather than on the technology used to deliver it. If the token is a MiCA crypto-asset, marketing communications are subject to the requirements of Article 7 of MiCA, and all marketing communications must comply with the following requirements: • they must be clearly identifiable as marketing com- munications; • the information they contain must be fair, clear and not misleading; • the information must be consistent with the infor- mation in the crypto-asset white paper where a white paper is required; 4. Cross-Border Services 4.1 Marketing
• they must clearly state that a white paper has been published and indicate the address of the relevant website, telephone number and email address; and • each marketing communication must contain the following prominent statement: “This crypto-asset marketing communication has not been reviewed or approved by any competent authority in any Member State of the European Union.”No market- ing communications may be disseminated prior to the publication of the white paper, although mar- ket soundings are not affected by this restriction. Marketing communications must be provided to the competent authority of the home member state and, where they address prospective holders in a host member state, to the competent authority of that host member state, upon request. Where the token is a financial instrument, MiFID II, the Prospectus Regulation and MAR will apply instead of, or in addition to, MiCA. Crowdfunding activities are subject to Regulation (EU) 2020/1503 on Euro- pean crowdfunding service providers for business (the “EU Crowdfunding Regulation”) and Romanian Law No 244/2022. Payment services, e-money, consumer credit, fund interests and insurance-based investment products each carry their own marketing restrictions. A project that describes itself as “crypto” may in sub- stance be advertising a payment account, an invest- ment product, a fund-like participation or a credit product, and the correct analysis begins with the legal rights and service being offered, not the technology through which they are delivered. Reverse Solicitation Reverse solicitation is available only in narrow circum- stances. A foreign firm cannot rely on it if it actively targets Romanian users through Romanian-language channels, local advertising, influencer campaigns, referral schemes or local payment infrastructure, and EU guidance interprets the exemption strictly. Con- sumer protection rules apply in parallel regardless of the regulatory classification of the product: the ANPC may assess whether advertising is misleading, wheth- er risks are adequately disclosed and whether retail customers are given a fair understanding of the volatil- ity and legal status of crypto-assets. Yield language, “guaranteed return” wording and statements implying regulatory approval are areas of particular sensitivity.
539 CHAMBERS.COM
Powered by FlippingBook