Romania: MiFID II in Practice: When can an activity be considered investment advice?

Romania: MiFID II in Practice: When can an activity be considered investment advice?

February 11, 2026
2 minutes
Madalina Stoican

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The accelerating pace of digitalisation, the emergence of new online interaction models and shifts in investor behaviour require a careful legal assessment of what constitutes investment advice under Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments (“MiFID II”).

In practice, one of the recurring questions is whether certain services, although not explicitly presented as personalised recommendations, may nevertheless fall within the regulatory framework applicable to investment advice.

Under MiFID II, investment advice refers to the provision of a personal recommendation to a client, either at the client’s request or at the initiative of the investment firm, in relation to one or more transactions in financial instruments. For a communication to qualify as investment advice, three cumulative criteria must be met:

  • it must relate to a specific financial instrument;
  • it must contain a recommendation and not merely factual or general information;
  • it must be presented as suitable for the client or tailored to the client’s circumstances.

    • It is not enough for a firm to say that it does not provide investment advice. The legal qualification depends on the content of the communication, rather than how it is labelled. If the message appears personalised, implies that a product is suitable for the client or seeks to influence the client’s investment decision, it may fall within the scope of investment advice under MiFID II.

    Common scenarios where qualification risks arise include:

  • Copy trading platforms that allow clients to automatically replicate the trades of other investors. If the structure of the platform suggests that these trades are suitable for the user, there is a real risk that the service will be regarded as investment advice.
  • Content promoted via social media or influencers, particularly where financial products are presented as suitable for a particular audience.
  • Automated digital solutions that generate investment recommendations based on user behaviour or personal data, even in the absence of direct human involvement.
  • Product rankings or curated selections, such as “Top 5 ETFs for 2025”, which, depending on how they are presented, may be perceived as recommendations tailored to a particular client profile.

    • Whether a service qualifies as investment advice does not depend solely on its name or the provider’s stated intent, but rather on the actual content of the communication, the client relationship context, and how a reasonable client would perceive it, taking into account the applicable MiFID II requirements and implementing legislation.

    In many cases, firms operate in a regulatory grey area where a proper legal analysis may be essential to distinguish between compliance and potential breach. Where there is uncertainty as to whether a business model, communication strategy, or platform functionality may involve regulated investment advice, obtaining specialised legal advice is strongly recommended to assess the associated risks and regulatory implications.

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