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Companies and projects have increasingly relied on the sale of digital assets, or tokens, as a means of fundraising. These tokens generally do not grant the holders an ownership interest in the issuing company or project, but may provide governance rights, access rights or other utility. This has been conducted through public sales known as initial coin offerings (ICOs), proliferation through token generation events (TGEs) or private sales, among other mechanisms. While showing characteristics of traditional methods of fundraising, there are a range of unanswered questions related to the legal classifications of such products. As ICOs and TGEs will usually be distributed online and internationally, there is usually no single legal framework applying to such transaction, and the legal framework of each market in which the tokens may be offered or sold needs to be considered.
Introduction
Attitude of the country towards ICOs/token sales
To our knowledge, we are not aware of any social or political pressures made with respect to the ICOs / token sale market in Romania.
Legal affairs
Presence of any explicit regulation on ICOs and the issuance of token/coins
As of 2022, there is no explicit regulation with respect to ICOs and the issuance of tokens/coins in Romania.
Presence of any explicit restrictions on ICOs or the issuance, distribution and/or transfer of token/coins
There are no explicit restrictions on ICOs or the issuance, distribution and/or transfer of token/coins in Romania.
Obligations and requirements to issue token/coins
No license is required, to the extent the tokens/coins do not fall into the category of regulated securities, investment products or payment instruments.
However, pursuant to the provisions of Law no. 243/2019 on the regulation of alternative investment funds (which transposed provisions of the AIFMD in Romania), an alternative investment fund is used to raise capital from a number of investors, with a view to investing it in accordance with a defined investment policy for the benefit of those investors. Depending on its structure, an ICO scheme could qualify as an alternative investment fund, with the ICO’s whitepaper serving as the investment policy, and as a result, the companies involved in the ICO scheme may fall into the scope of Law no. 243/2019, and therefore must comply with the rules relating to capital, operations and organisation and transparency requirements.
Classification of token/coins in the jurisdiction
As mentioned above, the Romanian law does not provide for any specific regulations on tokens/coins. However, depending on the structure of the projects underlying the tokens/coins, such instruments may fall into a regulated category of products. From this perspective, depending on the structure of the tokens/coins, such instruments could be included in the category of financial instruments (such as securities or investment products).
Presence of a duty to publish a prospectus bevor offering token/coins to investors
The Financial Supervisory Authority of Romania (the “FSA”) has not imposed any rules related to the obligation to publish a prospectus before offering tokens/coins to investors, yet. However, Regulation (EU) no. 2017/1129 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market is binding in all member states, including Romania, and was implemented by Law no. 24/2017 on issuers of financial instruments and market operations. To the extent the tokens/coins would be regarded as financial instruments (such as securities or investment products), the issuers of the tokens/coins would have to comply with the provisions of the regulations mentioned above. In this case, a prospectus wo