Romania

Court cases brought between 2019-2023 before the Court of Justice of the European Union (“CJEU”) having intellectual property as the subject matter ranked second in terms of their total number (after those involving freedom, security and justice). Navigating the vast IP ocean, one recent case stood out in particular (Case C-227/23 – Kwantum Nederland and Kwantum België[1]), insofar as it involved a potential conflict of laws between EU and the international laws. The conflict was eventually settled by CJEU’s binding decision as of 24.10.2024. By upholding the very principles of EU law, CJEU has opened the door wide for international creators of works of applied art[2] who will now enjoy sufficient protection for their works within all the EU member states. 1.Facts The smallest snowflake can cause the greatest avalanche. This is also the situation in the present case, where the avalanche effect was produced by perhaps nothing more thrilling than a... chair. But an admirably crafted one. Vitra Collections AG (“Vitra”), a company incorporated under Swiss law, produces designer furniture, in particular chairs, including the well-known Dining Sidechair Wood (“the DSW chair”), designed in 1948 by the now deceased couple Charles and Ray Eames, who were citizens of the United States of America. In the Netherlands and Belgium, Kwantum Nederland BV and Kwantum België BV, two businesses operating under Dutch law (“Kwantum”) run a chain of stores that offer furniture and other household goods. In 2014, Vitra discovered that Kwantum had been selling and promoting a chair under the name “Paris”, which allegedly violates its copyright for the DSW chair. In this context, Vitra brought an action before the Dutch courts with the aim, among other things, of stopping the sale of the Paris chair. In first instance, the District Court of Hague held that Kwantum did not infringe Vitra’s copyrights and that it did not act unlawfully by selling the Paris chair and, consequently, rejected Vitra’s applications for the protection of its own IP rights on EU territory. The first court's judgment was overturned by the Court of Appeal of Hague, which considered that Kwantum did infringe Vitra’s copyrights on the DSW chair and that the chair itself was eligible for copyright protection on EU territory. Further appeals were subsequently lodged by the parties before the Supreme Court of the Netherlands, which reached an impasse on the interpretation and complementarity of the provisions of Dutch copyright law with those of international law. Thus things stand, the Supreme Court decided to stay the proceedings and to refer to the CJEU for a preliminary ruling, mainly requesting the EU court to offer guidance regarding the protection that may be given in the European Union to works of applied art originating in a third country, when the creator of the work is not a citizen of a Member State. 2.The material reciprocity clause - Berne Convention De jure, given the DSW chair's USA “citizenship”, the key element in understanding the CJEU's ruling in the above-described case is the understanding (and potential applicability) of the reciprocity clause contained within the Berne Convention[3]. The Berne Convention establishes a general principle of “national treatment”, wherein authors originating from the signatory states of the Convention are entitled to the same intellectual property rights in another signatory state as that state’s own citizens or residents would be entitled to. However, Article 2(7) of the Convention creates an exception which applies both to works of applied art, and to industrial designs and models – the first category being of interest to the present case. In the specific cases involving these categories of creations, the Convention requires that the material reciprocity test is to be carried out in order to assess the level of protection that is to be granted to such creations. The material reciprocity test implies that if the laws of the country of origin of a work provide protection solely under industrial design or model laws (rather than copyright law), other signatory states are not obligated to extend copyright protection beyond what is recognized domestically. To put it briefly, copyright protection is of a limited nature as regards works of applied art that are not protected in their author’s country of origin, thus allowing other signatory states to refuse to grant greater copyright protection. It is not disputed that, under Dutch copyright law, the work in question would qualify as a work of applied art. Nor is it disputed that, in accordance with Article 5(4) of the Convention, the U.S. is the country of origin of the work. However, in the Dutch courts, the parties disagreed on whether, considering the state of harmonised copyright law, the court should apply the reciprocity test[4]. Under U.S. law, works of applied art can receive copyright protection if their artistic elements are separable from functional aspects. For example, while the structural function of a chair is not copyrightable, unique sculptural features that don't impact function (like the DSW chair's distinct design and its specific processing of raw materials) may qualify for copyright. By (hypothetically) performing the material reciprocity test, it would be concluded that if a country (like the U.S.) only protects certain applied art as designs (and not under copyright), other signatory states are not obligated to provide copyright protection for those works. The applicability of this clause is critical in the case at hand because it questions whether EU Member States (or the EU legislature itself) can limit protection for the DSW chair based on the type of protection it receives in the U.S. Consequently, it follows that the case at hand raises significant questions as regards the copyright protection enjoyed throughout the EU territory in respect of works which do not originate in the EU. The answer given by the CJEU will thus have profound implications for the harmonization of copyright protections across jurisdictions. 3.CJEU Judgement. Importance In its decision, the CJEU stated that Member States cannot apply a material reciprocity criterion for works of applied art originating from third countries, such as the U.S., based solely on the protections available in those countries, as would be required under the reciprocity clause. Furthermore, the EU Court clarified that only the EU legislature itself can decide if, and to what extent, copyright rights might be limited within the Union. In short, the decision signals that neither the place where a work of applied art was created, nor the nationality of the creators themselves is of any relevance, since, due to the protection provided under EU rules, they are equally protected in any of the EU Member States. The CJEU decision finds itself in complete harmony with Advocate General Szpunar's view[5], which found on 5 September 2024, in its groundbreaking Opinion, that the protection offered by the EU legal framework to works of applied art also extends to those residing in third countries. In terms of importance, the CJEU's decision appears to be fundamental for protection of the IP rights across the European area, because it reinforces the EU's commitment to unified copyright standards, holding firm against external influences and ensuring a cohesive, fair environment for creative rights across all Member States. Consider an example involving a Japanese artist whose mural is protected only as an industrial design in Japan. Under the CJEU's decision, if this mural is displayed in the EU, it will receive full copyright protection, unaffected by Japan’s more limited protection. This ruling establishes that EU Member States must consistently apply EU copyright standards, regardless of the work’s origin or the creator’s nationality, ensuring a harmonized legal framework for intellectual property rights within the EU. Given all of the above, one can only imagine that the worldwide creative community will be more than eager to learn about the significance of the CJEU's decision delivered in the case discussed in the present article. Authored by Patricia Gorici, Associate Irina Vasile, Partner *** For any IP-related inquiries, applications or disputes – regardless of the place of creation or the nationality of the creator – Lexters professionals are skilled with all the necessary expertise to deliver results of the highest quality for both national and international clients. Do not hesitate to contact us should you be in need of any assistance, representation or simply answers to your own questions. [1] The complete decision can be accessed here. [2] Works of applied art = works that apply design and decoration to everyday and essentially practical objects in order to make them aesthetically pleasing. [3] Berne Convention for the Protection of Literary and Artistic Works, adopted in 1886, deals with the protection of works and the rights of their authors. It is administered by the World Intellectual Property Organization and has so far been ratified by 181 states worldwide, including the 178 UN member states. It provides creators with the means to control how their works are used, by whom, and on what terms. It is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them. Berne Convention can be accessed here. [4] M. Eechoud, A. Metzger, J. P. Quintais, O.A. Rognsta, Opinion of the European Copyright Society on Certain Selected Aspects of Case C-227/23, Kwantum Nederland and Kwantum Belgie, IIC - International Review of Intellectual Property and Competition Law, 2024.   [5] Opinion of Advocate General Szpunar in Case C‑227/23, delivered on 5 September 2024, can be accessed here.

Popovici Nițu Stoica & Asociații is pleased to announce five promotions to Managing and Senior Associate. Further to the Firm’s annual performance assessment, Diana Dobra (Corporate & Commercial; Mergers & Acquisitions; Projects) and Vanessa Nistor (Competition & Antitrust; FDI; Consumer) became Managing Associates. The new Senior Associates are Elena Eftene (Corporate; Telecommunications, Media & Technology), Liviu Gabor (Litigation; White-Collar Compliance & Defense) and Bianca Manea (Litigation; Real Estate). Diana Dobra joined the PNSA team in 2017 and has significant experience in public projects, corporate M&A and regulatory matters. Vanessa Nistor joined the Firm in 2017 as well. Vanessa has a vast experience in all aspects of competition and trade regulations, including consumer protection legislation. Additionally, Vanessa consistently provides clients with assistance in FDI matters. Elena Eftene has extensive experience in a whole array of corporate and commercial matters pertaining mainly to formation of businesses and specific permitting and regulatory issues. Liviu Gabor is experienced in white-collar criminal defense, government investigations and internal corporate investigations. His practice includes assistance and representation both before courts and in pre-trial investigations. Bianca Manea specializes in civil and commercial litigations. Her practice covers real estate, and administrative law matters. All appointments are effective as of March 1, 2025. Managing Partner Florian Niţu states: ‘Congratulations! We are proud of your excellent work and grateful for your contribution and wish you the very best in the new role!’ _________________________________________________________________ Popovici Nițu Stoica & Asociații is a leading Romanian independent law firm and has been at the forefront of the market since its incorporation in 1995. Popovici Nițu Stoica & Asociații and PNSA Tax group today more than 80 lawyers and counsels, including 16 partners, largely acknowledged as top-notch commercial law experts, by clients and peers.

Popovici Nitu Stoica & Asociatii (PNSA) has advised, together with Latham and Watkins LLP, a syndicate of Romanian and international banks on the granting of a credit facility of approximately USD 173,000,000 to Black Sea Oil & Gas S.A. for the financing of ongoing projects and investments in the Midia Gas Development project in the Black Sea. The loan is provided in the form of a long-term revolving facility and represents one of the largest corporate financings in 2024 granted to a Romanian company. The PNSA team that managed the legal aspects of this project was composed of Bogdan C. Stoica (Partner), Ioana Lazăr (Senior Associate) and Crina Stan (Associate), while Black Sea Oil & Gas S.A. was assisted by a team from Ijdelea & Associates composed of Oana Ijdelea (Managing Partner), Siranus Hahamian (Partner), Andreea Tudor (Managing Associate) and Robert Niță (Senior Associate). Black Sea Oil & Gas SA is a company controlled by the investment fund Carlyle International Energy Partners, which holds a majority stake of approximately 90% of the shares issued by the company. The remaining 10% of the shares are held by the European Bank for Reconstruction and Development (EBRD). Black Sea Oil & Gas SA is the main investor in the Midia Gas Development project which consists of the onshore and offshore infrastructure and the two gas production licences at Ana and Doina gas fields in the XV Midia Shallow Concession in the Romanian Black Sea. Black Sea Oil & Gas holds a 70% interest in the offshore perimeter and being joined in this association by investors such as Petro Ventures with a 20% interest and the Italian company Gas Plus with 10%. *** Popovici Nițu Stoica & Asociații is a leading Romanian independent law firm and has been at the forefront of the market since its incorporation in 1995. Popovici Nițu Stoica & Asociații and PNSA Tax group today more than 80 lawyers and counsels, including 16 partners, largely acknowledged as top-notch commercial law experts, by clients and peers.

The regulation of crypto-asset markets at the level of the European Union is no longer a legislative promise, but a legal reality. With the adoption of Regulation (EU) 2023/1114 on Markets in Crypto-Assets (MiCA), the Union establishes, for the first time, a unified and directly applicable legal framework specifically designed for digital assets not covered by existing financial regulations. Although the Regulation entered into force in 2023, the actual applicability of the provisions of the Regulation regarding crypto-asset service providers (CASPs) has been postponed, in order to allow Member States to establish the necessary institutional infrastructure. National Initiative for the implementation of MiCA In Romania, the implementation of the MiCA Regulation has been initiated through a draft Emergency Government Ordinance developed by the Ministry of Finance, which is currently subject to public consultation under the applicable transparency procedures. This legislative act lays down the national framework required for the effective enforcement of the new European provisions and, in accordance with Article 94 of the Regulation, delineates the distribution of responsibilities among the competent national authorities. Furthermore, the draft ordinance sets out the institutional architecture for the supervision of the domestic crypto-asset market, establishes the authorization regime applicable to crypto-asset service providers (CASPs), and introduces a specific framework of sanctions for regulatory breaches. It also regulates essential aspects such as the operation of Crypto ATM terminals, the technical and fiscal compliance obligations of service providers, as well as transitional provisions enabling entities that are already active to continue their operations until the relevant authorization is obtained under the new legal regime. Taken as a whole, the draft ordinance marks a transition from a previously fragmented and liberal regulatory environment to a unified and coherent legislative framework, fully aligned with European standards and aimed at supporting the development and institutional consolidation of the crypto-asset market in Romania. Institutional architecture of crypto-asset market supervision With regard to the allocation of responsibilities, the draft Emergency Ordinance designates two central authorities as responsible for the implementation of the Regulation: the Financial Supervisory Authority (ASF), an autonomous administrative body responsible for the regulation and oversight of non-banking financial markets, and the National Bank of Romania (BNR), the central bank of the Romanian state and the prudential authority for the banking sector and payment institutions. ASF is entrusted with supervising the issuance of asset-referenced tokens (ARTs), other crypto-assets that are not electronic money tokens, as well as the provision of crypto-asset services, expressly including the operation of Crypto ATMs. In contrast, BNR is designated as the competent authority exclusively for the issuance of EMTs by credit institutions and electronic money institutions under its supervision. Additionally, in terms of cross-border cooperation, ASF is appointed as the single point of contact for the European Securities and Markets Authority (ESMA), while BNR assumes the same role in relation to the European Banking Authority (EBA). To fulfil their statutory responsibilities efficiently, both authorities may be supported by other public institutions with technical, fiscal, or cybersecurity competencies, including: the Ministry of Internal Affairs (MAI), the National Authority for Consumer Protection (ANPC), the National Agency for Fiscal Administration (ANAF), the National Institute for Research and Development in Informatics – ICI Bucharest, and the Authority for the Digitalization of Romania (ADR). Inter-institutional cooperation mechanisms are strengthened through the possibility of concluding formal cooperation protocols. Authorisation regime for crypto-asset service providers and related infrastructure A distinct section is dedicated to the regulatory framework applicable to Crypto ATM terminals, defined as physical devices through which users may purchase or sell crypto-assets using cash or other payment methods. According to the draft legislation, the operation of such terminals is subject to prior authorisation by the Financial Supervisory Authority (ASF), acting as the competent authority. For this purpose, operators are required to submit two technical approvals: one concerning the physical model of the terminal, issued by the National Institute for Research and Development in Informatics (ICI Bucharest), and another concerning the IT system employed, issued by the Romanian Authority for Digitalisation (ADR). Furthermore, the draft establishes the obligation to implement technical mechanisms that enable real-time and remote access by the competent authority to transactional data, including the individual identification of users for each transaction carried out. The terminals must be equipped with authentication systems, encryption technologies and advanced security measures, and must be installed in locations compliant with the legal requirements for physical protection, as laid down by Government Decision No. 301/2012. The draft explicitly prohibits the installation of such terminals in in publicly accessible or unsupervised premises and requires prior notification to the ASF regarding the intended locations. Additionally, providers are required to ensure full transparency regarding fees and terms of use, as well as easy access to information concerning the risks associated with crypto-asset transactions. With regard to the obligations imposed on crypto-asset service providers, the draft legislative act reflects the legislator’s intention to establish a market access regime that is both rigorous and proportionate, in line with the principles set out under MiCA. The draft Emergency Ordinance conditions the granting of authorisation on the cumulative fulfilment of clear requirements: the absence of outstanding tax liabilities, the absence of unreversed criminal convictions or relevant entries in the tax offence register, both for the legal entity and for the members of its management. Existing operators will be required to update their corporate purpose accordingly and notify either the Financial Supervisory Authority (ASF) or the National Bank of Romania (BNR), depending on the nature of the services provided. In addition, a monthly fee amounting to 0.5% of the revenues generated from authorised activities is established. This amount must be transferred in full to the ASF no later than the 15th day of the month following the one for which it is due, and is intended to support the Authority’s regulatory, supervisory and enforcement duties in the crypto-asset sector. Failure to pay this fee shall result in the revocation of the provider’s operating authorisation. Supervisory mechanisms and the sanctioning framework From a supervisory standpoint, the draft ordinance introduces a differentiated sanctioning mechanism, tailored to the nature of the entity and the severity of the breach. It draws a clear distinction between administrative offences and criminal violations, assigning enforcement powers to the two competent authorities – the Financial Supervisory Authority (ASF) and the National Bank of Romania (BNR). These authorities are empowered to apply a broad range of enforcement measures, including administrative fines, written warnings, suspension of activities, and public disclosure of the sanctions imposed. All sanctions are subject to procedural safeguards, including the right to challenge administrative decisions before a court of law. The underlying objective of this coercive framework is to ensure a high level of compliance and investor protection, without impairing the functioning of the market. Transitional provisions and compliance challenges In order to allow for the adaptation of entities already operating in the field of crypto-asset services on Romanian territory, the draft ordinance includes transitional provisions enabling such entities to continue their activity until authorisation is obtained under the new legal framework. However, the wording of the proposed legislation creates legal uncertainty and necessitates further clarification, as the current formulation of the transitional provisions under Article XXXIV of the draft ordinance appears to extend the authorisation requirement to providers that are already authorised in another Member State of the European Union under the MiCA Regulation. This interpretation is not, however, expressly supported by any provision that would exclude the applicability of the cross-border service provision mechanisms laid down in the Regulation. While it is unclear whether this extension of the authorisation requirement was indeed intended by the legislator, the absence of an explicit distinction between the two categories of providers risks leading to inconsistent application of the regulation and to practical difficulties in ensuring compliance during the transitional period. In addition, the draft legislative act introduces an obligation for crypto-asset platforms to undergo recurring technical audits, with a view to ensuring a high level of operational security and user protection. In cases where repeated security breaches are identified, the draft provides for gradual sanctions, which may ultimately lead to the suspension of the entity’s activity for a period of up to three years, as well as the obligation to fully compensate customers for the damages incurred. The implementation of the MiCA Regulation in Romania is expected to fundamentally reshape the operational landscape for crypto-asset service providers. Significant investments in compliance infrastructure, advanced technology, and specialized personnel will be necessary. At the same time, increased investor confidence and enhanced market stability may constitute key advantages. From a legal perspective, the transposition of MiCA poses several challenges: the complexity of inter-institutional coordination, time constraints in adopting secondary legislation, and the risk of market concentration. These challenges are addressed through transitional arrangements and structured mechanisms for institutional cooperation. Therefore, the proposed legislative measure constitutes a critical and necessary step toward establishing a regulated, functional, and credible crypto-asset market in Romania, fully aligned with European standards.   Authored by Andrei Cosma, Partner and Adela Nuță, Managing Associate.