# Official Journal C 328/2020

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 328 |
| | |
| English edition | Information and Notices | Volume 635 October 2020 |

ISSN 1977-091X

Official Journal

of the European Union

C 328

English edition

Information and Notices

Volume 635 October 2020

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| Contents | page |
| --- | --- |
| | III   Preparatory acts |
| | COUNCIL |
| 2020/C 328/01 | Position (EU) No 9/2020 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council amending Directive 2014/65/EU on markets in financial instruments Adopted by the Council on 20 July 2020 (
  1
  ) | 1 |
| 2020/C 328/02 | Statement of the Council’s reasons: Position (EU) No 9/2020 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council amending Directive 2014/65/EU on markets in financial instruments | 3 |

Contents

page

III   Preparatory acts

COUNCIL

2020/C 328/01

Position (EU) No 9/2020 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council amending Directive 2014/65/EU on markets in financial instruments Adopted by the Council on 20 July 2020 (
  1
  )

1

1

2020/C 328/02

Statement of the Council’s reasons: Position (EU) No 9/2020 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council amending Directive 2014/65/EU on markets in financial instruments

3

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| | (1)   Text with EEA relevance. |

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(1)   Text with EEA relevance.

1

| EN | |
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EN

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III Preparatory acts

COUNCIL

| 5.10.2020 | EN | Official Journal of the European Union | C 328/1 |
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5.10.2020

EN

Official Journal of the European Union

C 328/1

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POSITION (EU) No 9/2020 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Directive of the European Parliament and of the Council amending Directive 2014/65/EU on markets in financial instruments

Adopted by the Council on 20 July 2020

(Text with EEA relevance)

(2020/C 328/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 53(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

After consulting the European Central Bank,

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

| (1) | Crowdfunding is a financial technology solution that provides small and medium-sized enterprises (SMEs) and, in particular, start-ups and scale-ups, with alternative access to finance in order to promote innovative entrepreneurship in the Union, thereby strengthening the Capital Markets Union. That in turn contributes to a more diversified financial system that is less dependent on bank finance, therefore limiting systemic and concentration risks. Other benefits of promoting innovative entrepreneurship through crowdfunding are the unlocking of frozen capital for investment in new and innovative projects, the acceleration of efficient allocation of resources and a diversification of assets. |
| --- | --- |

(1)

Crowdfunding is a financial technology solution that provides small and medium-sized enterprises (SMEs) and, in particular, start-ups and scale-ups, with alternative access to finance in order to promote innovative entrepreneurship in the Union, thereby strengthening the Capital Markets Union. That in turn contributes to a more diversified financial system that is less dependent on bank finance, therefore limiting systemic and concentration risks. Other benefits of promoting innovative entrepreneurship through crowdfunding are the unlocking of frozen capital for investment in new and innovative projects, the acceleration of efficient allocation of resources and a diversification of assets.

| (2) | Regulation (EU) .../... of the European Parliament and of the Council (3) lays down uniform, proportionate and directly applicable requirements for the provision of crowdfunding services, for the organisation, authorisation and supervision of crowdfunding service providers, for the operation of crowdfunding platforms as well as for transparency and marketing communications in relation to the provision of crowdfunding services in the Union. |
| --- | --- |

(2)

Regulation (EU) .../... of the European Parliament and of the Council (3) lays down uniform, proportionate and directly applicable requirements for the provision of crowdfunding services, for the organisation, authorisation and supervision of crowdfunding service providers, for the operation of crowdfunding platforms as well as for transparency and marketing communications in relation to the provision of crowdfunding services in the Union.

| (3) | To provide legal certainty as to the persons and activities falling within the scope of Regulation (EU) .../... and of Directive 2014/65/EU of the European Parliament and of the Council (4), respectively, and in order to avoid a situation where the same activity is subject to multiple authorisations within the Union, legal persons authorised as crowdfunding service providers under Regulation (EU) .../... should be excluded from the scope of Directive 2014/65/EU. |
| --- | --- |

(3)

To provide legal certainty as to the persons and activities falling within the scope of Regulation (EU) .../... and of Directive 2014/65/EU of the European Parliament and of the Council (4), respectively, and in order to avoid a situation where the same activity is subject to multiple authorisations within the Union, legal persons authorised as crowdfunding service providers under Regulation (EU) .../... should be excluded from the scope of Directive 2014/65/EU.

| (4) | As the amendment provided for in this Directive is directly linked to Regulation (EU) .../..., the date from which Member States are to apply the national measures transposing this Directive should be deferred in order to coincide with the date of application set out in that Regulation, |
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(4)

As the amendment provided for in this Directive is directly linked to Regulation (EU) .../..., the date from which Member States are to apply the national measures transposing this Directive should be deferred in order to coincide with the date of application set out in that Regulation,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

In Article 2(1) of Directive 2014/65/EU, the following point is added:

| ‘(p) | crowdfunding service providers as defined in point (e) of Article 2(1) of Regulation (EU) .../... of the European Parliament and of the Council (*1). |
| --- | --- |

‘(p)

crowdfunding service providers as defined in point (e) of Article 2(1) of Regulation (EU) .../... of the European Parliament and of the Council (*1).

Article 2

1.   Member States shall adopt and publish, by ... [6 months after the date of entry into force of the Regulation contained in document ST 6800/20 (2018/0048(COD))], the laws, regulations and administrative provisions necessary to comply with Article 1 of this Directive.

They shall apply those measures from ... [12 months after the date of entry into force of the Regulation contained in document ST 6800/20 (2018/0048(COD))].

2.   Member States shall communicate to the Commission and to the European Securities and Markets Authority (ESMA) the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 3

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 4

This Directive is addressed to the Member States.

Done at ...,

For the European Parliament

The President

For the Council

The President

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(1)  OJ C 367, 10.10.2018, p. 65.

1

(2)  Position of the European Parliament of 27 March 2019 (not yet published in the Official Journal) and position of the Council at first reading of 20 July 2020. Position of the European Parliament of ... (not yet published in the Official Journal).

2

(3)  Regulation (EU) .../... of the European Parliament and of the Council of ... on European crowdfunding service providers for business, and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937 (OJ L ..., ..., p. ...).

3

(4)  Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).

4

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| 5.10.2020 | EN | Official Journal of the European Union | C 328/3 |
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5.10.2020

EN

Official Journal of the European Union

C 328/3

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Statement of the Council’s reasons: Position (EU) No 9/2020 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council amending Directive 2014/65/EU on markets in financial instruments

(2020/C 328/02)

I.   INTRODUCTION

On 8 March 2018, the Commission adopted a package of measures to deepen the Capital Markets Union, together with the Communication ‘Completing Capital Markets Union by 2019 – time to accelerate delivery’. This package included the following two Ordinary Legislative Procedure proposals:

| — | Proposal for a Regulation of the European Parliament and of the Council on European Crowdfunding Service Providers (ESCP) for Business, and |
| --- | --- |

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Proposal for a Regulation of the European Parliament and of the Council on European Crowdfunding Service Providers (ESCP) for Business, and

| — | Proposal for a Directive of the European Parliament and of the Council amending Directive 2014/65/EU on markets in financial instruments. |
| --- | --- |

—

Proposal for a Directive of the European Parliament and of the Council amending Directive 2014/65/EU on markets in financial instruments.

The European Parliament adopted its first-reading positions at its plenary session on 27 March 2019.

On the side of the Council, the Working Party on Financial Services examined the two proposals in a number of meetings under various Presidencies. The Permanent Representatives Committee issued a mandate to negotiate an agreement with the Parliament on these proposals on 26 June 2019.

An agreement on compromise texts for the Regulation and the Directive was reached with the European Parliament on 18 December 2019, subject to technical revision and legal-linguistic review.

On 7 May 2020 and following the completion of the technical revision, the European Parliament’s Committee on Economic and Monetary Affairs approved the compromise texts. On 12 May 2020, the Chair of that Committee then signed a letter to the Council Presidency stating that, should the Council adopt the technically revised compromise texts (including any necessary legal-linguistic changes) as its first-reading positions, she would recommend to the Parliament’s plenary session that the Parliament should in its second reading approve the Council’s positions without further amendment. The effect of this would be that the two proposed acts would then be deemed to have been adopted in the wording which corresponds to the positions of the Council.

On 20 May 2020, the Permanent Representatives Committee reached a political agreement on the technically revised compromise texts.

Taking into account the above agreement and after legal-linguistic revision, the Council adopted its position at first reading on 20 July 2020, in accordance with the ordinary legislative procedure laid down in Article 294 of the Treaty on the Functioning of the European Union (TFEU).

II.   OBJECTIVE

Crowdfunding is a financial technology solution that provides small and medium-sized enterprises, particularly start-ups and scale-ups, with alternative access to finance in order to promote innovative entrepreneurship in the Union, thereby strengthening the Capital Markets Union. That in turn contributes to a more diversified financial system that is less dependent on bank financing, consequently limiting systemic and concentration risks. Other benefits of promoting innovative entrepreneurship through crowdfunding are the unlocking of frozen capital for investment in new and innovative projects, the acceleration of efficient allocation of resources and a diversification of assets.

The objective of the Regulation and the Directive is to address the fragmentation of the legal framework applicable to crowdfunding services in order to ensure the proper functioning of the internal market in such services while enhancing investor protection as well as market efficiency and contributing to establishing the Capital Markets Union.

III.   ANALYSIS OF THE COUNCIL’S POSITION AT FIRST READING

The Directive removes crowdfunding service providers as defined in the Regulation from the scope of application of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (1).

IV.   CONCLUSION

The Council’s first-reading positions for the Regulation and Directive reflect the compromise reached in negotiations between the Council and the European Parliament.

The Council believes that its first-reading positions constitute a balanced package which will, once adopted, fulfil the objective of promoting the proper functioning of the internal market in crowdfunding services, enhancing investor protection as well as market efficiency, and contributing to establishing the Capital Markets Union.

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(1)  OJ L 173, 12.6.2014, p. 349.

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