Initial comment on the Regulation on European Crowdfunding Service Providers (ECSP) for business being implemented

November 16, 2021
James Burnie


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The European Parliament has approved a set of common rules on EU crowdfunding which comes into effect from the 10th November that aim to both boost crowdfunding service platforms and protect investors.

With headquarters in both the UK and Germany, the gunnercooke team provides its international perspective on the limitations and opportunities created by the new legislation, and what this means for investors and platforms based in the post-Brexit UK and the EU.

gunnercooke Financial Services Regulation and FinTech Partner James Burnie comments:

“With the exponential growth of crowdfunding in recent years, the EU has moved to increase market regulation in an attempt to make it easier for organisations to widen their potential pool of investors.

“From the 10th November, platforms which launch equity-based and Peer-2-Peer crowdfunding campaigns over a 12-month period of up to €5 million, will be subject to these regulations.

“It’s hoped that setting a minimum regulatory baseline for all crowdfunding platforms in the EU seeking to raise funds across member states will stimulate investment and growth across several sectors.

“Any new form of regulation can mean increased costs and onerous governance processes for the platform. It is hoped this will be more than offset by boosting investor confidence in this market through additional due diligence and protections.

“The UK government says it currently has no plans to adopt a similar approach to the EU and the new ECSP regulation does not contain an ‘equivalence provision’.

“Crowdfunding in the UK is already regulated by the Financial Conduct Authority and the cabinet office feels the new EU rules ‘shares key similarities with existing UK regulation’ and that ‘there is no evidence to suggest their implementation would result in material benefit to the UK Crowdfunding sector.’

“This means that UK-based crowdfunding platforms will be required to obtain authorisation in an EU member state.

“Ultimately time will tell if the EU has created a regulatory framework that provides a competitive advantage in terms of attracting new global investment.

“It will be interesting to see whether, and how quickly, UK regulators respond. We’ll be monitoring closely following the implementation on the 10th November and will ensure clients can react at speed to any potential change.”

Restructuring & Insolvency, Dispute Resolution, Banking & Finance Partner Artur Bunk from gunnercooke’s German practice adds:

“It was previously understood that, from the 10th November, operators of crowdfunding platforms in Germany looking to operate across the entire European Economic Area (EEA) would need to apply for a BaFin license to be eligible for the European passport.

“However, the latest German accompanying law has introduced liability regulations that go far beyond the intended goal of strengthening consumer protection.

“Several operators as well as the Federal Association of Crowd-funding Platforms, feel this could have a prohibitive effect on platform operators in Germany and on German companies seeking crowd-funding financing in other EU countries.

“The accompanying German law introduces personal liability for platform operator management teams around the accuracy of Key Investor Information Sheets (KIIS). Unlike prospectus liability, which is limited to gross negligence or intent, this new law exposes management to cases of simple negligence.

“The resulting liability risk could make the operation of a crowdfunding platform in Germany an incalculable risk and also make it more difficult for German companies to access foreign crowdfunding platforms should they fear falling under the German liability regime.”

James, Artur, and their teams advise financial institutions on all aspects of EU and UK financial regulation and are able to answer any specific questions you may have relating to your crowdfunding platform. To contact James click here, or to contact Artur click here.