On 8 March 2018, the European Commission published a proposal for a crowdfunding regulation as well as a proposal to amend MiFIDII.<\/p>\n
Under the proposal for a Crowdfunding Regulation, the exploiting entities of business crowdlending platforms and crowdinvesting platforms (in the proposal: crowdfunding service providers, \u201cCSPs\u201d) are offered a possibility to either opt for a \u2018EU regulatory treatment\u2019 or a \u2018national regulatory treatment\u2019. If the CSP opts for the EU regulatory treatment, it will have the benefit of a European passport without having to comply with additional national obligations on the basis of national crowdfunding legislation. If the CSP opts for the national regulatory treatment, things will remain as is resulting in crowdlending platforms generally not having passport possibilities and crowdinvesting platforms (to the extent regulated under MiFIDII under national laws) having passport possibilities but subjected to potential additional national obligations on the basis of national crowdfunding legislation.<\/p>\n
The Crowdfunding Regulation enables a more uniform approach within the European Economic Area (\u201cEEA\u201d) in respect of financial return based crowdfunding without confronting CSPs necessarily with additional administrative and costly national burdens when they wish to offer their services on a cross border basis within the EEA.<\/p>\n
The Crowdfunding Regulation does not apply to P2P consumer lending platforms (nor to CSPs that decide not to opt for the EU regulatory treatment). An important restriction for applicability of the Crowdfunding Regulation is that it is not available to crowdfunding offers by a project owner exceeding a consideration of more than \u20ac1mio in a period of 12 months. On the basis of Article 2 of the Crowdfunding Regulation, it is our understanding that CSPs that have opted for a \u2018EU regulatory treatment\u2019 can only <\/em>provide crowdfunding services in relation to crowdfunding offers not exceeding this threshold of \u20ac1mio; a CSP can not \u2018pick and choose\u2019 and offer its services in relation to offers up to \u20ac1mio on the basis of a EU regulatory treatment as well as offering its services in relation to offers above that threshold on the basis of a \u2018national regulatory treatment\u2019. On the basis of a quick review of the documents, we do not see any limitations in this respect for two (or more) separate legal entities in the same group of companies offering crowdfunding services on the basis of either \u2018EU regulatory treatment\u2019 or a \u2018national regulatory treatment\u2019.<\/p>\n <\/p>\n If a CSP opts for the EU regulatory treatment, it needs to apply to ESMA for authorization. Article 10(2) lists the documents that need to be submitted with an application (and as such the prerequisites for being authorized as a CSP). ESMA will also be the supervisor of CSPs within the EEA.<\/p>\n Some things we found particularly interesting are:<\/p>\n The proposal to amend MiFIDII is needed to offer crowdinvesting platforms the possibility to opt for a more proportionate regulatory regime than MiFIDII to the extent such crowdinvesting platforms fall under the scope of MiFIDII as implemented under national laws and regulations. The only amendment to MiFIDII relates to excluding CSPs (as defined below) from the scope of MiFID2 by adding a CSP to Article 2(1) of MiFIDII.<\/p>\n The proposals, impact assessment and further documents can be found here:<\/p>\n https:\/\/ec.europa.eu\/info\/publications\/180308-proposal-crowdfunding_en<\/a><\/p>\n The proposal for a Crowdfunding Regulation is open for consultation until 8 May 2018. You can provide your response to the consultation document via: http:\/\/ec.europa.eu\/info\/law\/better-regulation\/initiatives\/com-2018-113_en<\/a>.<\/p>\n\n