ROMANIA Law and Practice Contributed by: Alexandru Stanescu, Simina Negulescu, Anca Popan and Mihai-Cristian Huială, Lexters
tion, have entered into a partnership with an author- ised payment service provider, or fall within the lim- ited pending-application scenario described by the EBA. Under that scenario, the CASP must have duly submitted an application, the competent authority must have no reason to expect the application will be refused, and certain cumulative conditions must be met. CASPs that have not applied, or that do not meet these conditions, are expected to cease provid- ing EMT services that qualify as payment services. 6.2 Stablecoins 6.2.1 Fiat Currency and Algorithmic Stablecoins Romanian and EU law do not draw a fiat-versus- algorithmic distinction at the level of legal category. The classification under MiCA turns on the stabilisa- tion mechanism and the reference asset, not on the label “stablecoin”. As discussed in 2.2 Crypto-Asset Regulatory Frameworks , fiat-backed stablecoins will generally qualify as EMTs where they reference a sin- gle official currency, or as ARTs where they reference a basket of currencies, commodities or other assets. Algorithmic stablecoins raise a more difficult question. If an algorithmic token purports to maintain stable value by reference to an official currency or another asset, MiCA may still apply the EMT or ART frame- work, irrespective of the fact that the mechanism is algorithmic rather than fully reserve-backed (for back- ing asset requirements, see 6.2.3 Backing Assets ). If the token does not reference an official currency or asset in the relevant way, it may fall under the general Title II regime, but will still raise material disclosure and risk issues. Romanian law does not add a sepa- rate algorithmic category; classification follows MiCA and EU guidance on a substance-over-form basis. 6.2.2 Stablecoin Regulation Fiat-backed stablecoins are regulated mainly through MiCA, electronic money law and payment services law. The EMT and ART categories, their classification criteria and the applicable authorisation requirements are discussed in 2.2 Crypto-Asset Regulatory Frame- works . Under the draft Romanian MiCA framework, the BNR and ASF are expected to share supervisory competence over stablecoin issuance, with the allo- cation described in 2.1 Regulators and International Alignment .
The interaction between MiCA and payment servic- es law is particularly relevant for EMTs, as the same instrument is both a crypto-asset and electronic mon- ey. The EBA’s position on this overlap and its practical consequences for CASPs are discussed in 6.1 Pay- ments . For CASPs, the practical result is that a MiCA author- isation alone may not cover all stablecoin payment flows. A CASP offering custody, transfer or wallet services involving EMTs may need a payment servic- es licence or a relationship with an authorised pay- ment service provider, as discussed in 3.1 Licensing Requirements and 3.4 Passporting . 6.2.3 Backing Assets MiCA imposes strict rules on backing assets for ARTs. The issuer must maintain a reserve of assets, manage it prudently and invest it only in secure, low-risk and highly liquid financial instruments. The reserve must be legally segregated from the issuer’s own assets so that creditors of the issuer have no recourse to it, in particular in the event of insolvency. Holders have a permanent right of redemption against the reserve. Reserve custody must be documented and carried out by eligible custodians – credit institutions, invest- ment firms or CASPs, depending on the type of asset – and concentration risk must be avoided. For EMTs, the central requirement is redemption at par value at any time in the official currency referenced by the token. Funds received in exchange for EMTs must be safeguarded in accordance with MiCA and elec- tronic money law: at least 30% must at all times be deposited in separate accounts in credit institutions, and the remainder must be invested in secure, low- risk, highly liquid financial instruments with minimal market, credit and concentration risk, denominated in the same official currency. Issuers and CASPs must not grant interest linked to the holding of EMTs or ARTs. In practice, reserve location is both a legal and opera- tional issue. Romanian and EU issuers serving Roma- nian users should assess where the reserve is held, whether the custodian is EU-regulated, whether the reserve is bankruptcy-remote, and how redemption requests are processed under stress.
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