POSITION (EU) No 10/2020 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Regulation of the European Parliament and of the Council on European crowdfunding service providers for business, and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937

Adopted by the Council on 20 July 2020

(Text with EEA relevance)

2020/C 333/01

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 114 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 increasingly an established form of alternative finance for start-ups and small and medium-sized enterprises (SMEs), typically relying on small investments. Crowdfunding represents an increasingly important type of intermediation where a crowdfunding service provider, without taking on own risk, operates a digital platform open to the public in order to match or facilitate the matching of prospective investors or lenders with businesses that seek funding. Such funding could take the form of loans or the acquisition of transferable securities or of other admitted instruments for crowdfunding purposes. It is therefore appropriate to include within the scope of this Regulation both lending-based crowdfunding and investment-based crowdfunding, since those types of crowdfunding can be structured as comparable funding alternatives.

(2) The provision of crowdfunding services generally involves three types of actors: the project owner that proposes the project to be funded, investors who fund the proposed project, and an intermediating organisation in the form of a crowdfunding service provider that brings together project owners and investors through an online platform.

(3) Crowdfunding can contribute to providing access to finance for SMEs and completing the Capital Markets Union (CMU). Lack of access to finance for SMEs constitutes a problem even in those Member States where access to bank finance has remained stable throughout the financial crisis. Crowdfunding has emerged and become an established practice of funding business activities of natural and legal persons. Such funding takes place through online platforms; the business activities are typically funded by a large number of people or organisations; and the businesses, including business start-ups, raise relatively small amounts of money.

(4) In addition to providing an alternative source of financing, including venture capital, crowdfunding can offer other benefits to businesses. It can validate a business idea, give entrepreneurs access to a large number of people providing insights and information, and be a marketing tool.

(5) Several Member States have already introduced domestic bespoke regimes on crowdfunding. Those regimes are tailored to the characteristics and needs of local markets and investors. As a result, the existing national rules diverge across the Union as regards the conditions of operation of crowdfunding platforms, the scope of permitted activities and the authorisation requirements.

(6) The differences between the existing national rules are such that they obstruct the cross-border provision of crowdfunding services and thus have a direct effect on the functioning of the internal market in such services. In particular, the fact that the legal framework is fragmented along national borders creates substantial legal costs for retail investors who often face difficulties in determining the rules applicable to cross-border crowdfunding services. Therefore, such investors are often discouraged from investing cross-border by means of crowdfunding platforms. For the same reasons, crowdfunding service providers operating such platforms are discouraged from offering their services in Member States other than the one in which they are established. As a result, crowdfunding services have remained hitherto largely national, to the detriment of a Union-wide crowdfunding market, thus depriving businesses of access to crowdfunding services, especially in cases where those businesses operate in smaller national markets.

(7) In order to foster cross-border crowdfunding services and to facilitate the exercise of the freedom to provide and receive such services in the internal market, it is necessary to address the existing obstacles to the proper functioning of the internal market in crowdfunding services, and to ensure a high level of investor protection by laying down a regulatory framework at Union level.

(8) By addressing the obstacles to the functioning of the internal market in crowdfunding services, this Regulation aims to foster cross-border funding of businesses. Crowdfunding services in relation to lending to consumers, as defined in point (a) of Article 3 of Directive 2008/48/EC of the European Parliament and of the Council (3), should therefore not fall within the scope of this Regulation.

(9) To avoid regulatory arbitrage and to ensure their effective supervision, crowdfunding service providers should be prohibited from taking deposits or other repayable funds from the public, unless they are also authorised as a credit institution in accordance with Article 8 of Directive 2013/36/EU of the European Parliament and of the Council (4). However, Member States should ensure that national law does not require an authorisation as a credit institution or any other individual authorisation, exemption or dispensation for project owners or investors where they accept funds or grant loans for the purposes of offering or investing in crowdfunding projects.

(10) The provision of crowdfunding services aims to facilitate the funding of a project by raising capital from a large number of people who each contribute relatively small investment amounts through a publicly accessible internet-based information system. Crowdfunding services are thus open to an unrestricted pool of investors who receive investment propositions at the same time and involve the raising of funds predominantly from natural persons, including those that are not high-net worth individuals. This Regulation should apply to crowdfunding services which consist of the joint provision of reception and transmission of client orders and the placement of transferable securities or admitted instruments for crowdfunding purposes without a firm commitment basis on a public platform that provides unrestricted access to investors. The joint provision of those services is the key feature of crowdfunding services compared to certain investment services provided under Directive 2014/65/EU of the European Parliament and of the Council (5), even though individually those services match those covered by that Directive.

(11) In relation to lending-based crowdfunding, this Regulation should apply to crowdfunding services which consist of the facilitation of granting of loans, including services such as presenting crowdfunding offers to clients and pricing or assessing the credit risk of crowdfunding projects or project owners. The definition of crowdfunding services should accommodate different business models enabling a loan agreement between one or more investors and one or more project owners to be concluded through a crowdfunding platform. Loans included within the scope of this Regulation should be loans with unconditional obligations to repay an agreed amount of money to the investor, whereby lending-based crowdfunding platforms merely facilitate the conclusion by investors and project owner of loan agreements without the crowdfunding service provider at any moment acting as a creditor of the project owner. The facilitation of granting of loans which falls within the scope of this Regulation is to be distinguished from the activity of a credit institution, which grants credits for its own account and takes deposits or other repayable funds from the public.

(12) In order to deliver their services, crowdfunding service providers operate publicly accessible internet-based information systems, including those systems that require user registration.

(13) For investment-based crowdfunding, transferability is an important safeguard in order for investors to be able to exit their investment since it provides the possibility for them to dispose of their interest on the capital markets. This Regulation therefore covers and permits crowdfunding services related to transferable securities. Shares of certain private limited liability companies incorporated under the national law of Member States are also freely transferable on the capital markets and should therefore not be prevented from being included within the scope of this Regulation.

(14) Certain admitted instruments for crowdfunding purposes are in some Member States subject to national law governing their transferability, such as the requirement for the transfer to be authenticated by a notary. This Regulation should apply without prejudice to national law governing the transfer of such instruments.

(15) Whilst initial coin offerings have the potential to fund SMEs, innovative start-ups and scale-ups, and can accelerate technology transfer, their characteristics differ considerably from crowdfunding services regulated under this Regulation.

(16) Given the risks associated with crowdfunding investments, it is appropriate, in the interest of the effective protection of investors and of the provision of a mechanism of market discipline, to impose a threshold for a total consideration for crowdfunding offers made by a particular project owner. Accordingly, that threshold should be set at EUR 5 000 000, which is the threshold used by most Member States to exempt offers of securities to the public from the obligation to publish a prospectus in accordance with Regulation (EU) 2017/1129 of the European Parliament and of the Council (6).

(17) The overlapping regulatory frameworks established under this Regulation and Regulation (EU) 2017/1129, because of a threshold of EUR 5 000 000, might increase the risk of regulatory arbitrage and have a disruptive effect on access to finance and the development of capital markets in certain Member States. Moreover, to date, only a limited number of Member States have put in place a specific legal framework regulating crowdfunding platforms and services. Taking into account the fact that, in implementing Regulation (EU) 2017/1129, some Member States have set the threshold to exempt offers of securities to the public from the obligation to publish a prospectus at below EUR 5 000 000 and taking into account the special effort that might be sustained by those Member States in terms of adjusting their national law and ensuring the application of the single threshold under this Regulation, this Regulation should provide for a non-renewable temporary derogation in order to enable those Member States to make that significant effort. That temporary derogation should apply for the shortest possible period of time, in order to cause the least possible disturbance to the functioning of the internal market.

(18) In order to maintain a high standard of investor protection, to reduce the risks associated with crowdfunding and to ensure fair treatment of all clients, crowdfunding service providers should have in place a policy designed to ensure that projects on their platforms are selected in a professional, fair and transparent way, and that crowdfunding services are provided in the same manner.

(19) In order to improve the service to their clients, crowdfunding service providers should be able to propose crowdfunding projects to individual investors based on one or more specific parameters or risk indicators, such as the type or sector of business activity or a credit rating, which have been communicated in advance to the crowdfunding service provider by the investor. However, the authorisation obtained under this Regulation should not grant crowdfunding service providers the right to provide individual or collective asset management services. In order to ensure that prospective investors are offered investment opportunities on a neutral basis, crowdfunding service providers should not pay or accept any remuneration, discount or non-monetary benefit for routing investors’ orders to a particular offer provided on their platform or on a third-party platform.

(20) Business models using automated processes whereby funds are automatically allocated by the crowdfunding service provider to crowdfunding projects in accordance with parameters and risk indicators predetermined by the investor, so called auto-investing, should be considered individual portfolio management of loans.

(21) The existence of filtering tools on a crowdfunding platform under this Regulation should not be regarded as investment advice under Directive 2014/65/EU as long as those tools provide information to clients in a neutral manner that does not constitute a recommendation. Such tools should include those that display results based on criteria relating to purely objective product features. Objective product features in the context of a crowdfunding platform could be pre-defined project criteria such as the economic sector, the instrument used and the interest rate, or the risk category where sufficient information regarding the calculation method is disclosed. Similarly, key financial figures calculated without any scope for discretion should also be considered to be objective criteria.

(22) This Regulation aims to facilitate direct investment and to avoid creating regulatory arbitrage opportunities for financial intermediaries regulated under other legal acts of the Union, in particular Union legal acts governing asset managers. The use of legal structures, including special purpose vehicles, that interpose between the crowdfunding project and investors should therefore be strictly regulated and permitted only where it is justified by enabling an investor to acquire an interest in, for example, an illiquid or indivisible asset through issuance of transferable securities by a special purpose vehicle.

(23) Ensuring an effective system of governance is essential for the proper management of risk and for preventing any conflict of interest. Crowdfunding service providers should therefore have in place governance arrangements that ensure their effective and prudent management. The natural persons responsible for their management should be of good repute and have sufficient knowledge, skills and experience. Crowdfunding service providers should also establish procedures to receive and handle complaints from clients.

(24) Clients are exposed to potential risks related to the crowdfunding service providers, in particular operational risks. In order to protect clients against such risks, crowdfunding service providers should be subject to prudential requirements.

(25) Crowdfunding service providers should be required to develop business continuity plans addressing the risks associated with failure of a crowdfunding service provider. Such business continuity plans should include provisions for the handling of critical functions, which, depending on the business model of the crowdfunding service provider, could include provisions for the continued servicing of outstanding loans, client notification and handover of asset safekeeping arrangements.

(26) Crowdfunding service providers should operate as neutral intermediaries between clients on their crowdfunding platform. In order to prevent conflicts of interest, certain requirements should be laid down with respect to crowdfunding service providers, their shareholders, managers and employees, and any natural or legal person closely linked to them by way of control. In particular, crowdfunding service providers should be prevented from having any participation in the crowdfunding offers on their crowdfunding platforms. Major shareholders, managers and employees, and any natural or legal person closely linked to them by way of control, should not act as project owners in relation to the crowdfunding services offered on their crowdfunding platform. However, those major shareholders, managers, employees, and natural or legal persons should not be prohibited from acting as investors in the projects offered on their crowdfunding platform, provided that appropriate safeguards against conflicts of interest are in place.

(27) In the interest of the efficient and smooth provision of crowdfunding services, crowdfunding service providers should be allowed to entrust any operational function, in whole or in part, to a third party provided that such outsourcing does not impair the quality of crowdfunding service providers’ internal controls or the effective supervision of the crowdfunding service providers. Crowdfunding service providers should however remain fully responsible for compliance with this Regulation with respect to the outsourced activities.

(28) The requirements concerning safekeeping of assets are crucial for the protection of investors receiving crowdfunding services. Transferable securities or admitted instruments for crowdfunding purposes which can be registered in a financial instruments account or which can be physically delivered to the custodian should be safe-kept by a qualified custodian, which is authorised in accordance with Directive 2013/36/EU or 2014/65/EU. Depending on the type of assets to be safe-kept, assets are either to be held in custody, as with transferable securities which can be registered in a financial instruments account or which can be physically delivered, or to be subject to ownership verification and record-keeping. Safekeeping of transferable securities or admitted instruments for crowdfunding purposes that in accordance with national law are only registered with the project owner or its agent, such as investments in non-listed companies, or are held on an individually segregated account that a client could open directly with a central securities depository, is considered equivalent to asset safekeeping by qualified custodians.

(29) Since only payment service providers are permitted to provide payment services as defined in Directive (EU) 2015/2366 of the European Parliament and of the Council (7), an authorisation to provide crowdfunding services does not equate to an authorisation also to provide payment services. It is therefore appropriate to clarify that, where a crowdfunding service provider provides such payment services in connection with its crowdfunding services, it also needs to be a payment service provider as defined in Directive (EU) 2015/2366. That requirement is without prejudice to entities authorised under Directive 2014/65/EU that carry out an activity referred to in Article 3 of Directive (EU) 2015/2366 and that are also subject to the notification requirement set out in Article 37 of Directive (EU) 2015/2366. In order to enable proper supervision of such activities, the crowdfunding service provider should inform the competent authorities whether it intends to provide payment services itself with the appropriate authorisation or whether such services will be outsourced to an authorised third party.

(30) The growth and smooth functioning of cross-border crowdfunding services require a sufficient scale and public confidence in those services. It is therefore necessary to lay down uniform, proportionate and directly applicable requirements for the authorisation of crowdfunding service providers. Requirements for crowdfunding services should therefore facilitate cross-border provision of those services, reduce operational risks, and ensure a high degree of transparency and investor protection.

(31) In order to ensure effective supervision of the crowdfunding service providers, only legal persons that have an effective and stable establishment in the Union, including the necessary resources, should be able to apply for authorisation as crowdfunding service providers under this Regulation.

(32) Crowdfunding services can be exposed to money laundering and terrorist financing risks, as underlined in the Report from the Commission to the European Parliament and the Council of 26 June 2017 on the assessment of the risks of money laundering and terrorist financing affecting the internal market and relating to cross-border activities. Safeguards should therefore be provided when setting out the conditions for authorisation of crowdfunding service providers and for assessing the good repute of the natural persons responsible for their management as well as by restricting the provision of payment services to licensed entities subject to anti-money laundering and terrorist financing requirements. With a view to further ensuring market integrity by preventing risks of money laundering and terrorist financing, and taking into account the amount of funds that can be raised by a crowdfunding offer in accordance with this Regulation, the Commission should assess the necessity and proportionality of subjecting crowdfunding service providers to obligations to comply with national law implementing Directive (EU) 2015/849 of the European Parliament and of the Council (8) in respect of money laundering or terrorist financing and of adding such crowdfunding service providers to the list of obliged entities for the purposes of that Directive.

(33) To enable crowdfunding service providers to operate cross-border without facing divergent rules and to thereby facilitate the funding of projects across the Union by investors from different Member States, Member States should not be allowed to impose additional requirements on those crowdfunding service providers that are authorised under this Regulation.

(34) The authorisation process should enable competent authorities to be informed of the services that the prospective crowdfunding service providers intend to provide including the crowdfunding platforms that they intend to operate, to assess the quality of their management, and to assess their internal organisation and procedures set up to ensure compliance with this Regulation.

(35) In order to ensure proper supervision and to avoid disproportionate administrative burdens, it should be possible for entities that have been authorised under Directive 2009/110/EC of the European Parliament and of the Council (9), or Directive 2013/36/EU, 2014/65/EU or (EU) 2015/2366, and that intend to provide crowdfunding services, to hold an authorisation both under one of those Directives and under this Regulation. In such cases, a simplified authorisation procedure should apply and the competent authorities should not require submission of documents or proof that are already at their disposal.

(36) To facilitate transparency for investors as regards the provision of crowdfunding services, the European Supervisory Authority (European Securities and Markets Authority) established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council (10) (ESMA) should establish a public and up-to-date register of all crowdfunding service providers authorised in accordance with this Regulation. That register should include information on all operating crowdfunding platforms in the Union.

(37) An authorisation under this Regulation should be withdrawn where the crowdfunding service provider no longer meets the conditions under which the authorisation was granted. Competent authorities should also have the power to withdraw an authorisation under this Regulation whenever a crowdfunding service provider, or a third party acting on its behalf, has lost its authorisation allowing for the provision of payment services under Directive (EU) 2015/2366 or investment services under Directive 2014/65/EU, or whenever a crowdfunding service provider that is also a payment service provider, or its managers, employees or a third party acting on its behalf, has infringed national law implementing Directive (EU) 2015/849.

(38) In order to provide a broad range of services to their clients, a crowdfunding service provider authorised under this Regulation should be allowed to engage in activities other than the provision of crowdfunding services covered by an authorisation under this Regulation.

(39) In order to ensure a clear understanding of the nature of crowdfunding services and the risks, costs and charges related to such services, crowdfunding service providers should provide their clients with information that is fair, clear and not misleading.

(40) Crowdfunding service providers who provide crowdfunding services consisting of the facilitation of granting of loans should make available to all clients certain relevant information, such as default rates of loans.

(41) Crowdfunding service providers that apply credit scores to crowdfunding projects or suggest the pricing of crowdfunding offers should disclose key elements of their methodology. The requirement concerning disclosure of methods to calculate credit scores, or to determine the price or the interest rate, should not be construed as requiring the disclosure of sensitive business information or in a manner that impedes innovation.

(42) To ensure adequate investor protection of different categories of investors participating in crowdfunding projects while facilitating investment flows, this Regulation distinguishes between sophisticated and non-sophisticated investors, and introduces different levels of investor protection safeguards appropriate for each of those categories. The distinction between sophisticated and non-sophisticated investors should build on the distinction between professional clients and retail clients established in Directive 2014/65/EU. However, that distinction should also take into account the characteristics of the crowdfunding market. In particular, the distinction between sophisticated and non-sophisticated investors in this Regulation should also consider the prospective investors’ experience in and knowledge of crowdfunding, which should be re-assessed every two years.

(43) Financial products marketed on crowdfunding platforms are not the same as traditional investment products or savings products, and should not be marketed as such. However, to ensure that prospective non-sophisticated investors understand the level of risk associated with crowdfunding investments, crowdfunding service providers should be required to run an entry knowledge test of prospective non-sophisticated investors in order to ascertain their understanding of such investments. Crowdfunding service providers should explicitly warn prospective non-sophisticated investors that have insufficient knowledge, skills and experience that the crowdfunding services provided might be inappropriate for them.

(44) Given that sophisticated investors are, by definition, aware of the risks associated with investments in crowdfunding projects, there is no merit in applying an entry knowledge test to them. Similarly, crowdfunding service providers should not be required to issue risk warnings to sophisticated investors.

(45) In order to ensure that non-sophisticated investors have read and understood the explicit risk warnings issued to them by the crowdfunding service provider, they should expressly acknowledge the risks that they are taking when they invest in a crowdfunding project. In order to maintain a high level of investor protection and given that an absence of such acknowledgement indicates a potential lack of understanding of the risks involved, crowdfunding service providers should only accept investments from non-sophisticated investors that have expressly acknowledged that they have received and understood those warnings.

(46) Given the risk associated with crowdfunding projects, non-sophisticated investors should avoid overexposure to them. There is a significant risk of losing large amounts of the initially invested sums or even of experiencing total loss. It is therefore appropriate to set out a maximum amount that non-sophisticated investors can, without further safeguards, invest in an individual project. By way of contrast, sophisticated investors who have the necessary experience, knowledge or financial capacity, or a combination thereof, should not be limited by such a maximum amount.

(47) In order to strengthen the protection for non-sophisticated investors, it is necessary to make provisions for a reflection period during which a prospective non-sophisticated investor can revoke an offer to invest or an expression of interest in a particular crowdfunding offer without giving a reason and without incurring a penalty. That is necessary to avoid a situation where a prospective non-sophisticated investor, by accepting a crowdfunding offer, thereby also accepts an offer to enter into a legally binding contract without any possibility of retraction within an adequate period of time. The period of reflection is not necessary when a prospective non-sophisticated investor can express an interest in a particular crowdfunding offer without also thereby binding him or herself to a contract, except in the situation when such an offer to invest is made or such an expression of interest is expressed at a moment close to the scheduled expiry date of the offer or to the date of reaching the target funding goal. Crowdfunding service providers should ensure that no money is collected from the investor or transferred to the project owner before the reflection period has expired.

(48) Considering the potential effects of the right to revoke an offer to invest or an expression of interest during a reflection period on the costs of raising capital through crowdfunding platforms, the Commission should assess, as a part of its report under this Regulation, whether the reflection period should be shortened to allow for a more efficient capital raising process without harming investor protection.

(49) Directive 97/9/EC of the European Parliament and of the Council (11) covers claims arising out of an investment firm’s inability to repay money owed to or belonging to investors and held on their behalf in connection with investment business, or its inability to return to investors any instruments belonging to them and held, administered or managed on their behalf in connection with investment business. Considering that the safekeeping of assets connected with crowdfunding services provided by an investment firm that is also authorised pursuant to Directive 2014/65/EU does not involve the provision of investment services within the meaning of point (2) of Article 4(1) of that Directive, non-sophisticated investors should be informed in the key investment information sheet that the investor compensation scheme protection does not apply to transferable securities or admitted instruments for crowdfunding purposes acquired through the crowdfunding platform. Moreover, the provision of crowdfunding services by such crowdfunding service provider should not be considered to be the taking of deposits within the meaning of point (3) of Article 2(1) of Directive 2014/49/EU of the European Parliament and of the Council (12).

(50) This Regulation lays down the content of a key investment information sheet to be provided by crowdfunding service providers to prospective investors for every crowdfunding offer in order to enable them to make an informed investment decision. The key investment information sheet should warn prospective investors that the investing environment they have entered into entails risks that are covered neither by deposit guarantee schemes established in accordance with Directive 2014/49/EU nor by investor compensation schemes established in accordance with Directive 97/9/EC.

(51) The key investment information sheet should reflect the specific features of lending-based and investment-based crowdfunding. To that end, specific and relevant indicators should be required. The key investment information sheet should also take into account, where available, the specific features and risks associated with project owners, and should focus on material information about the project owners, the investors' rights and fees, and the type of transferable securities, admitted instruments for crowdfunding purposes and loans offered. The key investment information sheet should be drawn up by the project owners, because the project owners are in the best position to provide the information required to be included therein. However, since it is the crowdfunding service providers that are responsible for providing the key investment information sheet to prospective investors, it is the crowdfunding service providers that should ensure that the key investment information sheet is clear, correct and complete.

(52) Crowdfunding service providers should be allowed to present more information than required in the key investment information sheet drawn up by the project owner. Such information should, however, be complementary and consistent with the other information provided in the key investment information sheet.

(53) If a crowdfunding service provider identifies an omission, mistake or inaccuracy in the key investment information sheet which could have a material impact on the expected return of the investment, that crowdfunding service provider should signal such an omission, mistake or inaccuracy promptly to the project owner, who should complete or correct that information. Where such completion or correction is not made, the crowdfunding service provider should, under certain conditions, suspend or even cancel the crowdfunding offer.

(54) To ensure seamless and expedient access to capital markets for start-ups and SMEs, to reduce their costs of financing and to avoid delays and costs for crowdfunding service providers, there should be no requirement for the key investment information sheet to be approved by a competent authority.

(55) Where so permitted by national law, a crowdfunding service provider should be able to transfer the ownership of shares in an investment-based crowdfunding project by updating its information system. A crowdfunding service provider should also, in the interests of transparency and flow of information, be able to allow clients who have made investments through its crowdfunding platform to advertise on a bulletin board on its crowdfunding platform their interest in buying or selling loans, transferable securities or admitted instruments for crowdfunding purposes which were originally offered on that crowdfunding platform, provided that the bulletin board does not bring together multiple third-party buying and selling interests in a way that results in a contract in relation to such advertisements. The bulletin board provided by a crowdfunding service provider should therefore not consist of an internal matching system which executes client orders on a multilateral basis unless, in relation to transferable securities, the crowdfunding service provider also has a separate authorisation as an investment firm in accordance with Article 5 of Directive 2014/65/EU, or as a regulated market in accordance with Article 44 of that Directive. Crowdfunding service providers that do not hold such an authorisation in relation to transferable securities should clearly inform investors that they do not accept the reception of orders for the purposes of buying or selling contracts in relation to investments originally made on the crowdfunding platform, that any buying and selling activity on their crowdfunding platform is at the investor's discretion and responsibility, and that they do not operate a trading venue in accordance with Directive 2014/65/EU.

(56) To facilitate transparency and to ensure proper documentation of communications with clients, crowdfunding service providers should keep all appropriate records related to their services and transactions.

(57) To ensure fair and non-discriminatory treatment of clients, crowdfunding service providers that are promoting their services through marketing communications should provide information that is fair, clear and not misleading.

(58) To provide more legal certainty to crowdfunding service providers operating across the Union and to ensure easier market access, national laws, regulations and administrative provisions which specifically govern marketing communications of crowdfunding service providers and which are applicable in Member States should be published electronically, as well as summaries thereof in a language customary in the sphere of international finance. For that purpose, ESMA and the competent authorities should keep their websites up-to-date.

(59) To allow for a better understanding of the extent of regulatory divergences between Member States regarding the requirements applicable to marketing communications, competent authorities should provide ESMA annually with a detailed report on their enforcement actions in that area.

(60) To avoid unnecessary costs and administrative burden on the cross-border provision of crowdfunding services, marketing communications should not be subject to translation requirements where they are provided in at least one of the official languages of the Member State in which the marketing communications are disseminated or in a language accepted by the competent authorities of that Member State.

(61) To ensure an efficient supervision and authorisation procedure, Member States should delineate the duties and functions to be carried out by the competent authorities pursuant to this Regulation. In order to facilitate effective cross-border administrative cooperation, each Member State should designate a single point of contact to manage communication with ESMA and competent authorities across the Union.

(62) Since effective tools, powers and resources of the competent authorities guarantee supervisory effectiveness, this Regulation should provide for a minimum set of supervisory and investigative powers to be entrusted to competent authorities in accordance with national law. Those powers should be exercised, where national law so requires, by application to the competent judicial authorities. When exercising their powers under this Regulation, ESMA and the competent authorities should act objectively and impartially and remain autonomous in their decision-making.

(63) For the purpose of detecting infringements of this Regulation, it is necessary for competent authorities to be able to access premises other than the private residences of natural persons in order to seize documents. Access to such premises is necessary when there is reasonable suspicion that documents and other data related to the subject matter of an inspection or investigation exist and might be relevant to prove an infringement of this Regulation. Additionally, access to such premises is necessary where the natural or legal person to whom a demand for information has already been made fails to comply with it, or where there are reasonable grounds for believing that, if a demand were to be made, it would not be complied with or that the documents or information to which the information requirement relates would be removed, tampered with or destroyed.

(64) In order to ensure that the requirements set out in this Regulation are fulfilled, it is important that Member States take the necessary steps to ensure that infringements of this Regulation are subject to appropriate administrative penalties and other administrative measures. Those penalties and measures should be effective, proportionate and dissuasive and ensure a common approach in Member States and a deterrent effect. This Regulation should not limit Member States’ ability to provide for higher levels of administrative penalties.

(65) In order to ensure that decisions imposing administrative penalties or other administrative measures taken by competent authorities have a deterrent effect on the public at large, they should be published unless the competent authority deems it necessary to opt for a publication on an anonymous basis, to delay the publication, or not to publish at all.

(66) Although Member States can lay down rules for administrative and criminal penalties for the same infringements, Member States should not be required to lay down rules for administrative penalties for infringements of this Regulation which are subject to national criminal law. However, the maintenance of criminal penalties instead of administrative penalties for infringements of this Regulation should not reduce or otherwise affect the ability of competent authorities to cooperate, access and exchange information in a timely way with competent authorities in other Member States for the purposes of this Regulation, including after any referral of the relevant infringements to the competent judicial authorities for criminal prosecution.

(67) As the key investment information sheet is designed to be tailored to the specific features of a crowdfunding offer and the information needs of investors, crowdfunding offers under this Regulation should be exempted from the obligation to publish a prospectus under Regulation (EU) 2017/1129 and that Regulation should be amended accordingly.

(68) Whistleblowers can bring new information to the attention of competent authorities which helps them in detecting infringements of this Regulation and imposing penalties. This Regulation should therefore ensure that adequate arrangements are in place to enable whistleblowers to alert competent authorities to actual or potential infringements of this Regulation and to protect them from retaliation. That should be done by amending Directive (EU) 2019/1937 of the European Parliament and of the Council (13) in order to make it applicable to breaches of this Regulation.

(69) In order to specify the requirements set out in this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of extending the transitional period with respect to crowdfunding services provided in accordance with national law. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (14). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(70) In order to promote the consistent application of this Regulation, including adequate protection of investors and consumers across the Union, technical standards should be developed. As bodies with highly specialised expertise, it would be efficient and appropriate to entrust ESMA and the European Supervisory Authority (European Banking Authority) established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council (15) (EBA) with the development of draft regulatory technical standards which do not involve policy choices, for submission to the Commission.

(71) The Commission should be empowered to adopt regulatory technical standards developed by ESMA and EBA with regard to individual portfolio management of loans, complaints handling, conflicts of interest, authorisation as crowdfunding service provider, information to clients, default rate disclosure, the entry knowledge test and simulation of the ability to bear loss, the key investment information sheet and cooperation between competent authorities. The Commission should adopt those regulatory technical standards by means of delegated acts pursuant to Article 290 TFEU and in accordance with Articles 10 to 14 of Regulations (EU) No 1093/2010 and (EU) No 1095/2010.

(72) The Commission should also be empowered to adopt implementing technical standards developed by ESMA with regard to reporting by crowdfunding service providers, the publication of national provisions concerning marketing requirements and cooperation between competent authorities and with ESMA. The Commission should adopt those implementing technical standards by means of implementing acts pursuant to Article 291 TFEU and in accordance with Article 15 of Regulation (EU) No 1095/2010.

(73) Any processing of personal data carried out within the framework of this Regulation, such as the exchange or transmission of personal data by the competent authorities, should be undertaken in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council (16) and any exchange or transmission of information by ESMA should be undertaken in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (17).

(74) Since the objectives of this Regulation, namely 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 CMU, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(75) The date of application of this Regulation should be deferred to align it with the date of application of the national rules transposing Directive (EU) …/… of the European Parliament and of the Council (18) (1), which exempts crowdfunding service providers falling under the scope of this Regulation from the application of Directive 2014/65/EU.

(76) In the interest of legal certainty and in view of the replacement of national rules by the rules set out in this Regulation insofar as types of crowdfunding services are concerned which are now included within the scope of this Regulation, it is appropriate to make transitional arrangements allowing persons providing such crowdfunding services in accordance with national law preceding this Regulation to adapt their business activities to this Regulation and to have sufficient time to apply for an authorisation thereunder. Such persons should therefore be able to continue to provide crowdfunding services that are included within the scope of this Regulation in accordance with the applicable national law until … [24 months after the date of entry into force of this Regulation]. During that transitional period, Member States can put in place special procedures to enable legal persons, which have been authorised under national law to provide crowdfunding services included within the scope of this Regulation, to convert their national authorisations into authorisations under this Regulation, provided that the crowdfunding service providers meet the requirements set out in this Regulation.

(77) Crowdfunding service providers who have failed to obtain authorisation in accordance with this Regulation by … [24 months after the date of entry into force of this Regulation] should not issue any new crowdfunding offers after that date. To avoid a situation whereby the raising of target capital in relation to a particular crowdfunding project is not completed by … [24 months after the date of entry into force of this Regulation], the calls for funding should be closed by that date. However, after … [24 months after the date of entry into force of this Regulation] servicing of the existing contracts, including collecting and transferring receivables, providing asset safekeeping services or processing corporate actions, can continue in accordance with the applicable national law.

(78) This Regulation respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. Therefore, this Regulation should be interpreted and applied in accordance with those rights and principles.

(79) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1 Subject matter, scope and exemptions 1. This Regulation lays down uniform 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. This Regulation does not apply to: (a) crowdfunding services that are provided to project owners that are consumers, as defined in point (a) of Article 3 of Directive 2008/48/EC; (b) other services related to those defined in point (a) of Article 2(1) and that are provided in accordance with national law; (c) crowdfunding offers with a consideration of more than EUR 5 000 000, which are to be calculated over a period of 12 months as the sum of: (i) the total consideration of offers of transferable securities and admitted instruments for crowdfunding purposes as defined in points (m) and (n) of Article 2(1) of this Regulation and amounts raised by means of loans through a crowdfunding platform by a particular project owner; and (ii) the total consideration of offers to the public of transferable securities made by the project owner referred to in point (i) of this point in its capacity as an offeror pursuant to the exemption under Article 1(3), or Article 3(2), of Regulation (EU) 2017/1129. 3. Unless a crowdfunding service provider, a project owner or an investor is authorised as a credit institution in accordance with Article 8 of Directive 2013/36/EU, Member States shall not apply national requirements implementing Article 9(1) of that Directive and shall ensure that national law does not require an authorisation as credit institution or any other individual authorisation, exemption or dispensation in connection with the provision of crowdfunding services in the following situations: (a) for project owners that in respect of loans facilitated by the crowdfunding service provider accept funds from investors; or (b) for investors that grant loans to project owners facilitated by the crowdfunding service provider.

Article 2 Definitions 1. For the purposes of this Regulation, the following definitions apply: (a) ‘crowdfunding service’ means the matching of business funding interests of investors and project owners through the use of a crowdfunding platform and which consists of any of the following activities: (i) the facilitation of granting of loans; (ii) the placing without a firm commitment basis, as referred to in point (7) of Section A of Annex I to Directive 2014/65/EU, of transferable securities and admitted instruments for crowdfunding purposes issued by project owners or a special purpose vehicle, and the reception and transmission of client orders, as referred to in point (1) of that Section, in relation to those transferable securities and admitted instruments for crowdfunding purposes; (b) ‘loan’ means an agreement whereby an investor makes available to a project owner an agreed amount of money for an agreed period of time and whereby the project owner assumes an unconditional obligation to repay that amount to the investor, together with the accrued interest, in accordance with the instalment payment schedule; (c) ‘individual portfolio management of loans’ means the allocation by the crowdfunding service provider of a pre-determined amount of funds of an investor, which is an original lender, to one or multiple crowdfunding projects on its crowdfunding platform in accordance with an individual mandate given by the investor on a discretionary investor-by-investor basis; (d) ‘crowdfunding platform’ means a publicly accessible internet-based information system operated or managed by a crowdfunding service provider; (e) ‘crowdfunding service provider’ means a legal person who provides crowdfunding services; (f) ‘crowdfunding offer’ means any communication by a crowdfunding service provider, in any form and by any means, presenting sufficient information on the terms of the offer and the crowdfunding project being offered, so as to enable an investor to invest in the crowdfunding project; (g) ‘client’ means any prospective or actual investor or project owner to whom a crowdfunding service provider provides, or intends to provide, crowdfunding services; (h) ‘project owner’ means any natural or legal person who seeks funding through a crowdfunding platform; (i) ‘investor’ means any natural or legal person who, through a crowdfunding platform, grants loans or acquires transferable securities or admitted instruments for crowdfunding purposes; (j) ‘sophisticated investor’ means any natural or legal person who is a professional client by virtue of point (1), (2), (3) or (4) of Section I of Annex II to Directive 2014/65/EU or any natural or legal person who has the approval of the crowdfunding service provider to be treated as a sophisticated investor in accordance with the criteria and the procedure laid down in Annex II to this Regulation; (k) ‘non-sophisticated investor’ means an investor who is not a sophisticated investor; (l) ‘crowdfunding project’ means the business activity or activities for which a project owner seeks funding through the crowdfunding offer; (m) ‘transferable securities’ means transferable securities as defined in point (44) of Article 4(1) of Directive 2014/65/EU; (n) ‘admitted instruments for crowdfunding purposes’ means, in respect of each Member State, shares of a private limited liability company that are not subject to restrictions that would effectively prevent them from being transferred, including restrictions to the way in which those shares are offered or advertised to the public; (o) ‘marketing communications’ means any information or communication from a crowdfunding service provider to a prospective investor or prospective project owner about the services of the crowdfunding service provider, other than investor disclosures required under this Regulation; (p) ‘durable medium’ means an instrument which enables the storage of information in a way that is accessible for future reference and for a period of time that is adequate for the purposes of the information, and which allows for the unchanged reproduction of the information stored; (q) ‘special purpose vehicle’ or ‘SPV’ means an entity created solely for, or which solely serves the purpose of, a securitisation within the meaning of point (2) of Article 1 of Regulation (EU) No 1075/2013 of the European Central Bank (19); (r) ‘competent authority’ means the authority, or authorities, designated by a Member State in accordance with Article 29. 2. Without prejudice to the possibility that shares of a private limited liability company fall under the definition of transferable securities under point (m) of paragraph 1, competent authorities that granted authorisation to the crowdfunding service provider may permit the use of such shares for the purposes of this Regulation provided that they meet the conditions for admitted instruments for crowdfunding purposes under point (n) of paragraph 1. 3. Competent authorities shall, on an annual basis, inform ESMA about the types of private limited liability companies and their shares that are offered and which fall within the scope of this Regulation, with reference to the applicable national law. ESMA shall make the information referred to in the first subparagraph publicly accessible on its website without undue delay. 4. On an annual basis, for the first two years of the application of this Regulation, ESMA shall collect the key investment information sheets drawn up by project owners that have issued admitted instruments for crowdfunding purposes. ESMA shall compare the information referred to in points (b) and (c) of part F of Annex I as provided in the key investment information sheets with the information provided by Member States under paragraph 3 of this Article. ESMA shall submit that comparison to the Commission, which shall include it in the report referred to in Article 45.

CHAPTER II

PROVISION OF CROWDFUNDING SERVICES AND ORGANISATIONAL AND OPERATIONAL REQUIREMENTS OF CROWDFUNDING SERVICE PROVIDERS

Article 3 Provision of crowdfunding services 1. Crowdfunding services shall only be provided by legal persons that are established in the Union and that have been authorised as crowdfunding service providers in accordance with Article 12. 2. Crowdfunding service providers shall act honestly, fairly and professionally in accordance with the best interests of their clients. 3. Crowdfunding service providers shall not pay or accept any remuneration, discount or non-monetary benefit for routing investors’ orders to a particular crowdfunding offer made on their crowdfunding platform or to a particular crowdfunding offer made on a third-party crowdfunding platform. 4. Crowdfunding service providers may propose to individual investors specific crowdfunding projects which correspond to one or more specific parameters or risk indicators chosen by the investor. Where the investor wishes to make an investment in the suggested crowdfunding projects, the investor shall review and expressly take an investment decision in relation to each individual crowdfunding offer. Crowdfunding service providers that provide individual portfolio management of loans shall do so in adherence to the parameters provided by the investors and shall take all necessary steps to obtain the best possible result for those investors. Crowdfunding service providers shall disclose to investors the decision-making process for executing the received discretionary mandate. 5. By way of derogation from the first subparagraph of paragraph 4, crowdfunding service providers providing individual portfolio management of loans may exercise discretion on behalf of their investors within the agreed parameters without requiring investors to review and take an investment decision in relation to each individual crowdfunding offer. 6. Where a special purpose vehicle is used for the provision of crowdfunding services, only one illiquid or indivisible asset shall be offered through such a special purpose vehicle. That requirement shall apply on a look-through basis to the underlying illiquid or indivisible asset held by financial or legal structures fully or partially owned or controlled by the special purpose vehicle. The decision to take exposure to that underlying asset shall exclusively lie with investors.

Article 4 Effective and prudent management 1. The management body of a crowdfunding service provider shall establish, and oversee the implementation of, adequate policies and procedures to ensure effective and prudent management, including the segregation of duties, business continuity and the prevention of conflicts of interest, in a manner that promotes the integrity of the market and the interests of its clients. 2. The management body of a crowdfunding service provider shall establish, and oversee the implementation of, appropriate systems and controls to assess the risks related to the loans intermediated on the crowdfunding platform. A crowdfunding service provider that provides individual portfolio management of loans shall ensure that it has in place adequate systems and controls for the management of risk and financial modelling for that provision of services and that it complies with the requirements set out in Article 6(1) to (3). 3. The management body of a crowdfunding service provider shall review, at least once every two years, taking into account the nature, scale and complexity of the crowdfunding services provided, the prudential safeguards referred to in point (h) of Article 12(2) and the business continuity plan referred to in point (j) of Article 12(2). 4. Where a crowdfunding service provider determines the price of a crowdfunding offer, it shall: (a) undertake a reasonable assessment of the credit risk of the crowdfunding project or project owner before the crowdfunding offer is made, including by considering the risk that the project owner will not make, in the case of a loan, bond or other form of securitised debt, one or more repayments by the due date; (b) base the credit risk assessment referred to in point (a) on sufficient information, including the following: (i) where available, audited accounts covering the two latest financial years; (ii) information of which it is aware at the time the credit risk assessment is carried out; (iii) information which has been obtained, where appropriate, from the project owner; and (iv) information which enables the crowdfunding service provider to carry out a reasonable credit risk assessment; (c) establish, implement and maintain clear and effective policies and procedures to enable it to carry out credit risk assessments, and publish those policies and procedures; (d) ensure that the price is fair and appropriate, including in situations where a crowdfunding service provider that determines the price of loans is facilitating an exit for a lender before the maturity date of a loan; (e) conduct a valuation of each loan in at least the following circumstances: (i) at the moment when the loan is originated; (ii) where the crowdfunding service provider considers that the project owner is unlikely to fulfil its obligations to repay the loan in full, without the crowdfunding service provider enforcing any relevant security interest or taking other steps with analogous effect; (iii) following a default; and (iv) where the crowdfunding service provider is facilitating an exit for a lender before the maturity date of the loan; (f) have and use a risk-management framework that is designed to achieve compliance with the requirements set out in points (a) to (e) of this paragraph; (g) maintain a record of each facilitated crowdfunding offer sufficient to demonstrate that: (i) a credit risk assessment was carried out when required and in compliance with points (a) and (b) of this paragraph; and (ii) the price of the crowdfunding offer was fair and appropriate in line with the risk-management framework.

Article 5 Due diligence requirements 1. A crowdfunding service provider shall undertake at least a minimum level of due diligence in respect of project owners that propose their projects to be funded through the crowdfunding platform of the crowdfunding service provider. 2. The minimum level of due diligence referred to in paragraph 1 shall include obtaining all of the following evidence: (a) that the project owner has no criminal record in respect of infringements of national rules in fields of commercial law, insolvency law, financial services law, anti-money laundering law, fraud law or professional liability obligations; (b) that the project owner is not established in a non-cooperative jurisdiction, as recognised by the relevant Union policy, or in a high-risk third country pursuant to Article 9(2) of Directive (EU) 2015/849.

Article 6 Individual portfolio management of loans 1. Where a crowdfunding service provider offers individual portfolio management of loans, an investor shall give the mandate specifying the parameters for providing the service, which shall include at least two of the following criteria that every loan in the portfolio will have to comply with: (a) the minimum and maximum interest rate payable under any loan facilitated for the investor; (b) the minimum and maximum maturity date of any loan facilitated for the investor; (c) the range and distribution of any risk categories applicable to the loans; and (d) if an annual target rate of return on investment is offered, the likelihood that the selected loans will enable the investor to achieve the target rate with reasonable certainty. 2. In order to comply with paragraph 1, a crowdfunding service provider shall have in place robust internal processes and methodologies and use appropriate data. The crowdfunding service provider may use its own data or data sourced from third parties. On the basis of sound and well-defined criteria, and taking into account all the relevant factors that may have unfavourable effects on the performance of the loans, the crowdfunding service provider shall assess: (a) the credit risk of individual crowdfunding projects selected for the investor’s portfolio; (b) the credit risk at the investor’s portfolio level; and (c) the credit risk of the project owners selected for the investor’s portfolio by verifying the prospect of the project owners meeting their obligations under the loan. The crowdfunding service provider shall also provide a description of the method used for the assessments referred to in points (a), (b) and (c) of the second subparagraph to the investor. 3. Where a crowdfunding service provider offers individual portfolio management of loans, it shall keep records of the mandate given and of every loan in an individual portfolio. The crowdfunding service provider shall keep records of the mandate and of every loan for at least three years after its maturity date on a durable medium. 4. A crowdfunding service provider shall, on a continuous basis and upon the request of an investor, provide via electronic means at least the following information on each individual portfolio: (a) the list of individual loans of which a portfolio is composed; (b) the weighted average annual interest rate on loans in a portfolio; (c) the distribution of loans according to risk category, in percentage and absolute numbers; (d) for every loan of which a portfolio is composed, key information, including at least an interest rate or other compensation to the investor, maturity date, risk category, schedule for the repayment of the principal and payment of interest, compliance of the project owner with that instalment payment schedule; (e) for every loan of which a portfolio is composed, risk mitigation measures including collateral providers or guarantors or other types of guarantees; (f) any default on credit agreements by the project owner within the past five years; (g) any fees paid in respect of the loan by the investor, the crowdfunding service provider or the project owner; (h) if the crowdfunding service provider has carried out a valuation of the loan: (i) the most recent valuation; (ii) the valuation date; (iii) an explanation as to why the crowdfunding service provider conducted the valuation; and (iv) a fair description of the likely actual return, taking into account fees and default rates. 5. Where a crowdfunding service provider has established and operates a contingency fund for its activity related to the individual portfolio management of loans, it shall provide the following information to the investors: (a) a risk warning specifying: ‘The contingency fund we offer does not give you a right to a payment so it may happen that you do not receive a pay-out even if you suffer loss. The contingency fund operator has absolute discretion as to the amount that may be paid, including making no payment at all. Therefore, investors should not rely on possible pay-outs from the contingency fund when considering whether or how much to invest.’; (b) a description of the policy of the contingency fund, including: (i) an explanation of the source of the money paid into the fund; (ii) an explanation of how the fund is governed; (iii) an explanation concerning whom the money belongs to; (iv) the considerations the contingency fund operator takes into account when deciding whether or how to exercise its discretion to pay out from the fund, including: — whether or not the fund has sufficient money to pay; and — that the contingency fund operator has absolute discretion in any event not to pay or to decide the amount of the payment; (v) an explanation of the process for considering whether to make a discretionary payment from the fund; and (vi) a description of how the money paid into the fund will be treated in the event of insolvency of the contingency fund operator. 6. A crowdfunding service provider that has established and operates a contingency fund as referred to in paragraph 5 shall provide the following information about the performance of the fund to the public on a quarterly basis: (a) the size of the contingency fund compared to the total amounts outstanding on loans relevant to the contingency fund; and (b) the ratio between payments made out of the contingency fund to the total amounts outstanding on loans relevant to the contingency fund. 7. EBA shall, in close cooperation with ESMA, develop draft regulatory technical standards to specify: (a) the elements, including the format, that are to be included in the description of the method referred to in the third subparagraph of paragraph 2; (b) the information referred to in paragraph 4; and (c) the policies, procedures and organisational arrangements that crowdfunding service providers are to have in place as regards any contingency funds they might offer as referred to in paragraphs 5 and 6. EBA shall submit those draft regulatory technical standards to the Commission by … [12 months after the date of entry into force of this Regulation]. Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.

Article 7 Complaints handling 1. Crowdfunding service providers shall have in place effective and transparent procedures for the prompt, fair and consistent handling of complaints received from clients and shall publish descriptions of those procedures. 2. Crowdfunding service providers shall ensure that clients are able to file complaints against them free of charge. 3. Crowdfunding service providers shall develop and make available to clients a standard template for complaints and shall keep a record of all complaints received and the measures taken. 4. Crowdfunding service providers shall investigate all complaints in a timely and fair manner, and communicate the outcome within a reasonable period of time to the complainant. 5. ESMA shall develop draft regulatory technical standards to specify the requirements, standard formats and procedures for complaint handling. ESMA shall submit those draft regulatory technical standards to the Commission by… [12 months after the date of entry into force of this Regulation]. Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

Article 8 Conflicts of interest 1. Crowdfunding service providers shall not have any participation in any crowdfunding offer on their crowdfunding platforms. 2. Crowdfunding service providers shall not accept as project owners in relation to the crowdfunding services offered on their crowdfunding platform any of the following: (a) their shareholders holding 20 %, or more, of share capital or voting rights; (b) their managers or employees; (c) any natural or legal person linked to those shareholders, managers or employees by control as defined in point (35)(b) of Article 4(1) of Directive 2014/65/EU. Crowdfunding service providers that accept as investors in the crowdfunding projects offered on their crowdfunding platform any of the persons referred to in points (a), (b) and (c) of the first subparagraph shall fully disclose on their website the fact that they accept such persons as investors, including information on the specific crowdfunding projects invested in, and shall ensure that such investments are made under the same conditions as those of other investors and that those persons do not enjoy any preferential treatment or privileged access to information. 3. Crowdfunding service providers shall maintain and operate effective internal rules to prevent conflicts of interest. 4. Crowdfunding service providers shall take all appropriate steps to prevent, identify, manage and disclose conflicts of interest between the crowdfunding service providers themselves, their shareholders, their managers or employees, or any natural or legal person linked to them by control, as defined in point (35)(b) of Article 4(1) of Directive 2014/65/EU, and their clients, or between one client and another client. 5. Crowdfunding service providers shall disclose to their clients the general nature and sources of conflicts of interest and the steps taken to mitigate them. Such disclosure shall be made on the website of the crowdfunding service provider in a prominent place. 6. The disclosure referred to in paragraph 5 shall: (a) be made on a durable medium; (b) include sufficient detail, taking into account the nature of each client, to enable each client to take an informed decision about the service in the context of which the conflict of interest arises. 7. ESMA shall develop draft regulatory technical standards to specify: (a) the requirements for the maintenance or operation of internal rules referred to in paragraph 3; (b) the steps referred to in paragraph 4; (c) the arrangements for the disclosure referred to in paragraphs 5 and 6. When developing those draft regulatory technical standards, ESMA shall take into account the nature, scale and complexity of the crowdfunding services provided by the crowdfunding service provider. ESMA shall submit those draft regulatory technical standards to the Commission by… [12 months after the date of entry into force of this Regulation]. Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

Article 9 Outsourcing 1. Crowdfunding service providers shall, when relying on a third party for the performance of operational functions, take all reasonable steps to avoid additional operational risk. 2. Outsourcing of operational functions referred to in paragraph 1 shall not impair the quality of the crowdfunding service providers’ internal control and the ability of the competent authority to monitor the crowdfunding service providers’ compliance with this Regulation. 3. Crowdfunding service providers shall remain fully responsible for compliance with this Regulation with respect to the outsourced activities.

Article 10 Provision of asset safekeeping services and payment services 1. Where asset safekeeping services and payment services are provided, crowdfunding service providers shall inform their clients of all of the following: (a) the nature and terms and conditions of those services, including references to the applicable national law; (b) whether those services are provided by them directly or by a third party. 2. Where crowdfunding service providers carry out payment transactions related to transferable securities and admitted instruments for crowdfunding purposes, they shall deposit the funds with one of the following entities: (a) a central bank; or (b) a credit institution authorised in accordance with Directive 2013/36/EU. 3. Transferable securities or admitted instruments for crowdfunding purposes offered on a crowdfunding platform, and which can be registered in a financial instruments account opened in the name of an investor or which can be physically delivered to a custodian, shall be held in custody by the crowdfunding service provider or by a third party. An entity providing custody services shall hold an authorisation in accordance with Directive 2013/36/EU or 2014/65/EU. 4. A crowdfunding service provider may itself, or through a third party, provide payment services provided that the crowdfunding service provider itself, or the third party, is a payment service provider in accordance with Directive (EU) 2015/2366. 5. Where a crowdfunding service provider does not provide payment services in relation to the crowdfunding services, either itself or through a third party, such a crowdfunding service provider shall put in place and maintain arrangements to ensure that project owners accept funding of crowdfunding projects, or any other payment, only by means of a payment service provider in accordance with Directive (EU) 2015/2366.

Article 11 Prudential requirements 1. Crowdfunding service providers shall, at all times, have in place prudential safeguards equal to an amount of at least the higher of the following: (a) EUR 25 000; and (b) one quarter of the fixed overheads of the preceding year, reviewed annually, which are to include the cost of servicing loans for three months where the crowdfunding service provider also facilitates the granting of loans. 2. The prudential safeguards referred to in paragraph 1 of this Article shall take one of the following forms: (a) own funds, consisting of Common Equity Tier 1 items referred to in Articles 26 to 30 of Regulation (EU) No 575/2013 of the European Parliament and of the Council (20) after the deductions in full, pursuant to Article 36 of that Regulation, without the application of threshold exemptions pursuant to Articles 46 and 48 of that Regulation; (b) an insurance policy covering the territories of the Union where crowdfunding offers are actively marketed or a comparable guarantee; or (c) a combination of points (a) and (b). 3. Paragraph 1 of this Article does not apply to crowdfunding service providers that are undertakings subject, on an individual basis or on the basis of their consolidated situation, to Title III of Part Three of Regulation (EU) No 575/2013 or to Regulation (EU) 2019/2033 of the European Parliament and of the Council (21). 4. Paragraph 1 of this Article does not apply to crowdfunding service providers that are undertakings subject to Articles 4 and 5 of Directive 2009/110/EC or Articles 7 to 9 of Directive (EU) 2015/2366. 5. Where a crowdfunding service provider has been in operation for less than 12 months, it may use forward-looking business estimates in calculating the fixed overheads, provided that it starts using historical data as soon as it becomes available. 6. The insurance policy referred to in point (b) of paragraph 2 shall have at least all of the following characteristics: (a) it has an initial term of no less than one year; (b) the notice period for its cancellation is at least 90 days; (c) it is taken out from an undertaking authorised to provide insurance, in accordance with Union law or national law; (d) it is provided by a third-party entity. 7. The insurance policy referred to in point (b) of paragraph 2 shall include, without being limited to, coverage against the risk of: (a) loss of documents; (b) misrepresentations or misleading statements made; (c) acts, errors or omissions resulting in a breach of: (i) legal and regulatory obligations; (ii) duty of skill and care towards clients; (iii) obligations of confidentiality; (d) failure to establish, implement and maintain appropriate procedures to prevent conflicts of interest; (e) losses arising from business disruption, system failures or process management; (f) where applicable to the business model, gross negligence in carrying out asset valuation or credit pricing and scoring. 8. For the purposes of point (b) of paragraph 1, crowdfunding service providers shall calculate their fixed overheads for the preceding year, using figures resulting from the applicable accounting framework, by subtracting the following items from the total expenses after distribution of profits to shareholders in their most recently audited annual financial statements or, where audited statements are not available, in annual financial statements validated by national supervisors: (a) staff bonuses and other remuneration, to the extent that they depend on a net profit of the crowdfunding service provider in the relevant year; (b) employees’, directors’ and partners’ shares in profits; (c) other appropriations of profits and other variable remuneration, to the extent that they are fully discretionary; (d) shared commission and fees payable which are directly related to commission and fees receivable, which are included within total revenue, and where the payment of the commission and fees payable is contingent upon the actual receipt of the commission and fees receivable; and (e) non-recurring expenses from non-ordinary activities. 9. Where fixed expenses have been incurred on behalf of the crowdfunding service providers by third parties, and those fixed expenses are not already included within the total expenses referred to in paragraph 8, crowdfunding service providers shall take either of the following actions: (a) where a break-down of the expenses of those third parties is available, determine the amount of fixed expenses that those third parties have incurred on their behalf and add that amount to the figure resulting from paragraph 8; (b) where the break-down of the expenses of those third parties is not available, determine the amount of expenses incurred on their behalf by those third parties according to the crowdfunding service providers’ business plans and add that amount to the figure resulting from paragraph 8.

CHAPTER III

AUTHORISATION AND SUPERVISION OF CROWDFUNDING SERVICE PROVIDERS

Article 12 Authorisation as a crowdfunding service provider 1. A legal person who intends to provide crowdfunding services shall apply to the competent authority of the Member State where it is established for authorisation as a crowdfunding service provider. 2. The application referred to in paragraph 1 shall contain all of the following: (a) the name (including the legal name and any other trading name to be used) of the prospective crowdfunding service provider, the internet address of the website operated by that provider, and its physical address; (b) the legal form of the prospective crowdfunding service provider; (c) the articles of association of the prospective crowdfunding service provider; (d) a programme of operations setting out the types of crowdfunding services that the prospective crowdfunding service provider intends to provide and the crowdfunding platform that it intends to operate, including where and how crowdfunding offers are to be marketed; (e) a description of the prospective crowdfunding service provider’s governance arrangements and internal control mechanisms to ensure compliance with this Regulation, including risk-management and accounting procedures; (f) a description of the prospective crowdfunding service provider’s systems, resources and procedures for the control and safeguarding of the data processing systems; (g) a description of the prospective crowdfunding service provider’s operational risks; (h) a description of the prospective crowdfunding service provider’s prudential safeguards in accordance with Article 11; (i) proof that the prospective crowdfunding service provider meets the prudential safeguards in accordance with Article 11; (j) a description of the prospective crowdfunding service provider’s business continuity plan which, taking into account the nature, scale and complexity of the crowdfunding services that the prospective crowdfunding service provider intends to provide, establishes measures and procedures that ensure, in the event of failure of the prospective crowdfunding service provider, the continuity of the provision of critical services related to existing investments and sound administration of agreements between the prospective crowdfunding service provider and its clients; (k) the identity of the natural persons responsible for the management of the prospective crowdfunding service provider; (l) proof that the natural persons referred to in point (k) are of good repute and possess sufficient knowledge, skills and experience to manage the prospective crowdfunding service provider; (m) a description of the prospective crowdfunding service provider’s internal rules to prevent persons referred to in the first subparagraph of Article 8(2) from engaging, as project owners, in crowdfunding services offered by the prospective crowdfunding service provider; (n) a description of the prospective crowdfunding service provider’s outsourcing arrangements; (o) a description of the prospective crowdfunding service provider’s procedures to handle complaints from clients; (p) a confirmation of whether the prospective crowdfunding service provider intends to provide payment services itself or through a third party, under Directive (EU) 2015/2366, or through an arrangement in accordance with Article 10(5) of this Regulation; (q) a description of the prospective crowdfunding service provider’s procedures to verify the completeness, correctness and clarity of the information contained in the key investment information sheet; (r) a description of the prospective crowdfunding service provider’s procedures in relation to investment limits for non-sophisticated investors referred to in Article 21(7). 3. For the purposes of point (l) of paragraph 2, prospective crowdfunding service providers shall provide proof of the following: (a) absence of a criminal record in respect of infringements of national rules in the fields of commercial law, insolvency law, financial services law, anti-money laundering law, fraud law or professional liability obligations for all the natural persons involved in the management of the prospective crowdfunding service provider and for shareholders who hold 20 % or more of the share capital or voting rights; (b) proof that the natural persons involved in the management of the prospective crowdfunding service provider collectively possess sufficient knowledge, skills and experience to manage the prospective crowdfunding service provider and that those natural persons are required to commit sufficient time to the performance of their duties. 4. The competent authority shall, within 25 working days of receipt of the application referred to in paragraph 1, assess whether that application is complete by checking that the information listed in paragraph 2 has been submitted. Where the application is not complete, the competent authority shall set a deadline by which the prospective crowdfunding service provider is to provide the missing information. 5. Where an application referred to in paragraph 1 remains incomplete after the deadline referred to in paragraph 4, the competent authority may refuse to review the application and, in the event of such refusal, shall return the submitted documents to the prospective crowdfunding service provider. 6. Where an application referred to in paragraph 1 is complete, the competent authority shall immediately notify the prospective crowdfunding service provider thereof. 7. Before adopting a decision granting or refusing to grant authorisation as a crowdfunding service provider, the competent authority shall consult the competent authority of another Member State in the following cases: (a) the prospective crowdfunding service provider is a subsidiary of a crowdfunding service provider authorised in that other Member State; (b) the prospective crowdfunding service provider is a subsidiary of the parent undertaking of a crowdfunding service provider authorised in that other Member State; or (c) the prospective crowdfunding service provider is controlled by the same natural or legal persons who control a crowdfunding service provider authorised in that other Member State. 8. The competent authority shall, within three months from the date of receipt of a complete application, assess whether the prospective crowdfunding service provider complies with the requirements set out in this Regulation and shall adopt a fully reasoned decision granting or refusing to grant authorisation as a crowdfunding service provider. That assessment shall take into account the nature, scale and complexity of the crowdfunding services that the prospective crowdfunding service provider intends to provide. The competent authority may refuse authorisation if there are objective and demonstrable grounds for believing that the management body of the prospective crowdfunding service provider could pose a threat to its effective, sound and prudent management and business continuity, and to the adequate consideration of the interest of its clients and the integrity of the market. 9. The competent authority shall inform ESMA of all authorisations granted under this Article. ESMA shall add information on the successful applications to the register of authorised crowdfunding service providers in accordance with Article 14. ESMA may request information in order to ensure that competent authorities grant authorisations under this Article in a consistent manner. 10. The competent authority shall notify the prospective crowdfunding service provider of its decision within three working days of the date of that decision. 11. A crowdfunding service provider authorised in accordance with this Article shall, at all times, meet the conditions for its authorisation. 12. Member States shall not require crowdfunding service providers that provide crowdfunding services on a cross-border basis to have a physical presence in the territory of a Member State other than the Member State in which those crowdfunding service providers are authorised. 13. Crowdfunding service providers authorised under this Regulation may also engage in activities other than those covered by the authorisation referred to in this Article in accordance with the relevant applicable Union or national law. 14. Where an entity authorised pursuant to Directive 2009/110/EC, 2013/36/EU, 2014/65/EU or (EU) 2015/2366, or national law applicable to crowdfunding services prior to the entry into force of this Regulation, applies for authorisation as a crowdfunding service provider under this Regulation, the competent authority shall not require that entity to provide information or documents which it has already submitted when applying for authorisation pursuant to those Directives or national law, provided that such information or documents remain up-to-date and are accessible to the competent authority. 15. Where a prospective crowdfunding service provider also seeks to apply for an authorisation to provide payment services solely in connection with the provision of crowdfunding services, and to the extent that the competent authorities are also responsible for the authorisation under Directive (EU) 2015/2366, the competent authorities shall require that the information and documents to be submitted under each application are submitted only once. 16. ESMA shall develop draft regulatory technical standards to specify further: (a) the requirements and arrangements for the application referred to in paragraph 1, including the standard forms, templates and procedures for the application for authorisation; and (b) the measures and procedures for the business continuity plan referred to in point (j) of paragraph 2. When developing those draft regulatory technical standards, ESMA shall take into account the nature, scale and complexity of the crowdfunding services provided by the crowdfunding service provider. ESMA shall submit those draft regulatory technical standards to the Commission by… [12 months after the date of entry into force of this Regulation]. Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

Article 13 Scope of authorisation 1. The competent authorities that granted an authorisation notified under Article 12(10) shall ensure that such authorisation specifies the crowdfunding services which the crowdfunding service provider is authorised to provide. 2. A crowdfunding service provider seeking authorisation to extend its business to additional crowdfunding services not foreseen at the time of the authorisation granted under Article 12 shall submit a request for extension of its authorisation to the competent authorities that granted the crowdfunding service provider its authorisation under Article 12 by complementing and updating the information referred to in Article 12(2). The request for extension shall be processed in accordance with Article 12(4) to (11).

Article 14 Register of crowdfunding service providers 1. ESMA shall establish a register of all crowdfunding service providers. That register shall be publicly available on its website and shall be updated on a regular basis. 2. The register referred to in paragraph 1 shall contain the following data: (a) the name, legal form and, where applicable, the legal entity identifier of the crowdfunding service provider; (b) the commercial name, physical address and internet address of the crowdfunding platform operated by the crowdfunding service provider; (c) the name and address of the competent authority which granted authorisation and its contact details; (d) information on the crowdfunding service for which the crowdfunding service provider is authorised; (e) a list of the Member States in which the crowdfunding service provider has notified its intention to provide crowdfunding services in accordance with Article 18; (f) any other services provided by the crowdfunding service provider not covered by this Regulation with a reference to the relevant Union or national law; (g) any penalties imposed on the crowdfunding service provider or its managers. 3. Any withdrawal of authorisation of a crowdfunding service provider in accordance with Article 17 shall be published, and remain published, in the register for five years.

Article 15 Supervision 1. Crowdfunding service providers shall provide their services under the supervision of the competent authorities which granted authorisation. 2. The relevant competent authority shall assess the compliance of crowdfunding service providers with the obligations provided for in this Regulation. It shall determine the frequency and depth of that assessment having regard to the nature, scale and complexity of the activities of the crowdfunding service provider. For the purpose of that assessment, the relevant competent authority may subject the crowdfunding service provider to an on-site inspection. 3. Crowdfunding service providers shall notify the relevant competent authority of any material changes to the conditions for authorisation without undue delay and shall, upon request, provide the information needed to assess their compliance with this Regulation.

Article 16 Reporting by crowdfunding service providers 1. A crowdfunding service provider shall annually and on a confidential basis provide a list of projects funded through its crowdfunding platform to the competent authority which granted authorisation, specifying for each project: (a) the project owner and the amount raised; (b) the instrument issued, as defined in points (b), (m) and (n) of Article 2(1); (c) aggregated information about the investors and invested amount broken down by fiscal residency of the investors, distinguishing between sophisticated and non-sophisticated investors. 2. Competent authorities shall provide the information referred to in paragraph 1 to ESMA in anonymised format within one month of the date of receipt of that information. ESMA shall develop and publish aggregated annual statistics relating to the crowdfunding market in the Union on its website. 3. ESMA shall develop draft implementing technical standards to establish data standards and formats, templates and procedures for the information to be reported in accordance with this Article. ESMA shall submit those draft implementing technical standards to the Commission by … [12 months after the date of entry into force of this Regulation]. Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010.

Article 17 Withdrawal of authorisation 1. The competent authorities which granted authorisation shall have the power to withdraw the authorisation in any of the following situations where the crowdfunding service provider: (a) has not used its authorisation within 18 months of the date of granting of the authorisation; (b) has expressly renounced its authorisation; (c) has not provided crowdfunding services for nine successive months and is also no longer involved in the administration of existing contracts that are the result of initial matching of business funding interests through the use of its crowdfunding platform; (d) has obtained its authorisation by irregular means, including making false statements in its application for authorisation; (e) no longer meets the conditions under which the authorisation was granted; (f) has seriously infringed this Regulation. The competent authorities which granted authorisation shall also have the power to withdraw the authorisation in any of the following situations: (a) where the crowdfunding service provider is also a payment service provider in accordance with Directive (EU) 2015/2366 and it, or its managers, employees or third parties acting on its behalf, have infringed national law implementing Directive (EU) 2015/849 in respect of money laundering or terrorist financing; or (b) where the crowdfunding service provider or a third party acting on its behalf has lost the authorisation allowing the provision of payment services in accordance with Directive (EU) 2015/2366 or investment services under Directive 2014/65/EU, and that crowdfunding service provider or third party has failed to remedy the situation within 40 calendar days. 2. Where a competent authority in a Member State withdraws an authorisation, the competent authority designated as a single point of contact in that Member State in accordance with Article 29(2) shall without undue delay notify ESMA and the competent authorities of the other Member States in which the crowdfunding service provider provides crowdfunding services in accordance with Article 18. ESMA shall introduce information on the withdrawal of the authorisation in the register referred to in Article 14. 3. Before making a decision to withdraw the authorisation, the competent authority that granted authorisation shall consult the competent authority of another Member State in cases where the crowdfunding service provider is: (a) a subsidiary of a crowdfunding service provider authorised in that other Member State; (b) a subsidiary of the parent undertaking of a crowdfunding service provider authorised in that other Member State; or (c) controlled by the same natural or legal persons who control a crowdfunding service provider authorised in that other Member State.

Article 18 Cross-border provision of crowdfunding services 1. Where a crowdfunding service provider authorised in accordance with Article 12 intends to provide crowdfunding services in a Member State other than the Member State whose competent authority granted authorisation in accordance with Article 12,