ROMANIA Law and Practice Contributed by: Sergiu-Traian Vasilescu, Luca Dejan, Bogdan Rotaru and Ana-Maria Bută, VD Law Group
10.8 Cryptocurrency Derivatives The offering of cryptocurrency derivatives is regulated under the EU financial services framework, in par - ticular, MiFID II, the Markets in Financial Instruments Regulation (MiFIR) and the European Market Infra - structure Regulation (EMIR), as such instruments are legally qualified as financial instruments rather than crypto-assets within the meaning of MiCA. Derivatives referencing cryptocurrencies, including futures, options, swaps and contracts for difference (CFDs), fall within Annex I, Section C of MiFID II and are therefore subject to the general capital markets regime. Romania’s current laws lack explicit rules for crypto - currency derivatives (eg, futures, options). While Law 129/2019 (aligned with EU AML rules) requires crypto- exchanges and wallets to register and comply with AML standards, it does not regulate derivatives. 10.9 Decentralised Finance (DeFi) Currently, there is no specific regulation on DeFi in the EU, but the sector is impacted by cryptocurrency pro - visions and other general financial regulations, such as AML and CFT legislation. As regards the new MiCA Regulation, fully decentralised DeFi services that do not have an intermediary are not directly covered. MiCA only covers partially decentralised services – that is, those that have components or intermediary entities managing the platforms. However, if a party facilitates the trading of securities tokens or cryptocurrencies, it must comply with local securities regulations, financial instruments and AML/CFT obligations, regardless of whether the service is decentralised. Therefore, the statement that such services are unregulated due to the lack of intermediaries could be challenged by Romanian regulators, who could interpret the activity as falling under the existing legal frameworks regulat - ing financial markets and cryptocurrency transactions. 10.10 Regulation of Funds In Romania, funds investing in blockchain assets are regulated under Law 126/2018 (for traditional invest - ment vehicles like UCITS/AIFs) if they hold security tokens or crypto-assets classified as financial instru - ments. For non-security tokens (eg, utility tokens) the EU regulation, MiCA, governs crypto-asset services,
to implement MiCA and designate the competent authorities. From a regulatory perspective, staking may qualify as a crypto-asset service under MiCA, in particular as: • custody and administration of crypto-assets on behalf of clients, and/or • operation of a trading platform or other crypto- asset services, depending on how the staking service is structured. Where staking involves taking custody of clients’ cryp - to-assets, pooling them, and generating rewards on their behalf, the provider is likely to be classified as a CASP and therefore subject to authorisation, and organisational, prudential, conduct of business, and disclosure requirements under MiCA. At a national level, the draft Romanian implementing legislation provides that entities intending to provide crypto-asset services must obtain authorisation from the ASF, but it does not contain staking-specific rules. As a result, staking is currently regulated in Romania through the general MiCA framework, on a case-by- case basis, depending on its legal and operational structure. In practice, this creates a degree of legal uncertainty, particularly as to the distinction between technical staking services, custodial staking, and investment-like staking arrangements, which may also trigger financial regulation or consumer protec - tion rules. 10.7 Crypto-Related Lending At the time of writing, lending services related to cryp - tocurrencies are not expressly regulated under spe - cific Romanian laws. Under MiCA, crypto-lending activities may, in certain circumstances, fall under the requirement to obtain a CASP licence. Specifically, if a lending service involves custody, control over client assets or even portfolio management services, it will likely need to comply with MiCA’s stringent transparency, operational and consumer protection standards, including obtaining the appropriate licence.
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