The EU Crowdfunding Regulation starts to apply: Overview & Practical Considerations (Part 2)

Introduction

On 10 November 2021, the long-awaited EU Regulation on European Crowdfunding Service Providers, for business (Regulation (EU) 2020/1053) (the ECSPR) that aims to create a harmonised regulatory framework for crowdfunding platforms in the EU has started to apply.

In the first part of our publication we have analysed the scope of application of the ECSPR and the authorisation requirements that prospective CSPs will need to comply with under the new regime. In this second part of our publication we will take a closer look at the investor protection requirements under ECSPR and analyse the impact that the new regime will have on the existing regulatory framework on crowdfunding in Germany.

Investor Protection Requirements

Investor categorization & Entry knowledge test

In term of investor categorization, the ECSPR differentiates between sophisticated investors (professional clients under the MiFID II and persons meeting certain qualification criteria set out in Annex II of the new Regulation) and non-sophisticated investors. Whereas sophisticated investors will not be subject to any limitations when investing, non-sophisticated investors will be subject to mandatory entry knowledge test prior to investing in particular crowdfunding project. Therefore, prior to providing non-sophisticated investors with the full access to crowdfunding offers, CSPs will have to assess investors’ knowledge and experience, financial situation, investment objectives and risk awareness in order to assess which crowdfunding projects are appropriate for them. Periodic appropriateness assessment will have to be conducted every two years.

Key Investment Information Sheet (KIIS)

Inspired by similar concepts that have emerged years ago under the PRIIPs and the UCITS framework, the ECSPR requires CSPs to ensure that investors are provided with a so called Key Investor Information Sheet (KIIS) for each crowdfunding offer. Limited to maximum 6 A4 pages, the KIIS will have to contain key information about the project owner, the project itself, terms and conditions of the fund raising, risk factors, details on associated fees and costs as well as appropriate risk warnings. The KIIS will need to be drawn up by the project owner for each crowdfunding offer and CSPs will be required to have adequate procedures in place to verify the completeness, correctness and clarity of information contained in it.

Since the KIIS will neither be verified nor approved by the NCA like securities prospectus, project owners will be required to make proper disclosure thereto in order to warn prospective investors about the risks associated with investment in respective project. Lending based CSPs providing portfolio management services will be additionally required to draft the KIIS at platform level which shall contain key information on the CSP, available loans in which investors’ funds can be invested as well as information on fees and risks associated with investments.

Auto-investing and use of filtering tools

The use of commonly used filtering tools and automated systems have been also addressed in the new ECSPR. To that end, where filtering tools are available on the platform, based on which investor can shortlist available projects in accordance with the pre-specified criteria (e.g. economic sector, interest rate etc.), the results provided to investors are not to be considered as investment advice as long as information are provided in a neutral manner and without provision of a specific recommendation. On the other hand, CSPs using automated processes based on which investor funds can be automatically allocated to specific projects in accordance with predetermined parameters (so called auto-investing) will be considered as individual portfolio management of loans.

Right to withdraw

Non-sophisticated investors will be able to revoke their offer or expression of interest to invest in a particular crowdfunding offer, within a 4-day pre-contractual reflection period, without the need to provide any reason or to incur penalty of any kind. For this purpose, CSPs will need to provide investors with the clear information on the reflection period and the ways in which investors’ right can be exercised.

The impact of the ECSPR on national framework in Germany

Up until recently, the roles of fundraisers and investors in crowdfunding structures in Germany, could potentially fall under the scope of some regulated financial services.

  1. First, the lending activity of the investor itself could (under certain conditions) constitute the regulated activity of credit business (Kreditgeschäft) within the meaning of Section 1 paragraph 1 Nr. 2 of the German Banking Act (Kreditwesengesetz “KWG”).
  • Second the fundraising via crowdfunding platform could also trigger the licensing requirement for the provision of the so called deposit business (Einlagengeschäft) within the meaning of Section 1 paragraph 1 Nr. 1 KWG.

German national law and administrative practice of the German Federal Financial Supervisory Authority (BaFin) have stipulated a number of exemptions from these regulated activities whose application needs to be assessed always on a case by case basis (like for instance the frequently used exemption for qualified subordinated loans whose granting does not trigger either of the aforementioned regulated activities).

With the aim of bridging this regulatory uncertainty, the German national transposition law (Schwarmfinanzierung-Begleitgesetz), which was adopted on 10 June 2021, makes necessary amendments to KWG by stipulating that fundraisers and lenders that raise/invest funds via crowdfunding platform authorized under the ECSPR, are not to be considered to be providing either of the above mentioned regulated activities.

Further, public offering of securities can generally trigger prospectus obligation under the German Prospectus Act (Wertpapierprospektgesetz “WpPG”), where no exemptions apply. In line with the ECSPR, the national transposition law exempts securities offering made on crowdfunding platforms operating under the new regime from requirements under WpPG.

Timeline & Outlook

Whereas the ECSPR has started to apply as of 10 November 2021 for all in-scope CSPs, the Regulation provides for an additional transitional period for operators of crowdfunding platforms that were operating under national rules before the go-live date of the ECSPR. They will have to apply for a new license and bring their business in line with new requirements by 10 November 2022.

On 10 November 2021, ESMA has published the Final Report on Technical Standards (RTS and ITS) that shall help prospective European CSPs with preparation for compliance with new requirements. In addition to this, in February 2021 ESMA has also published Q&A that bring more clarity to questions around the use of SPVs in crowdfunding structures, transitional provisions and operational requirements under the ECSPR.

The ECSPR promises to overcome existing obstacles embedded in national regimes of individual Member States by enabling CSPs to provide crowdfunding services based on a single set of rules on a cross-border basis and project owners to raise funds from investors from all across the EU. However, it remains to be seen whether and to what extent will the new regime be accepted on the market and whether it will really meet the expectations of EU lawmakers and the crowdfunding industry.

Building a Capital Markets Union for Europe: The Commission unveils new legislative proposals

Introduction

Back in 2015, the Commission has adopted its first Action Plan on Building a Capital Markets Union (CMU), whose main aim was to start the process of creation of a single capital market in the EU that would reduce existing market fragmentation and mobilise more funds for capital markets based financing of European businesses. Almost 5 years after publication of its first Action Plan, in September 2020 the Commission has unveiled its revised Action Plan on CMU, which was tailored in accordance with new economic priorities of the EU, recovery from the economic crisis caused by the coronavirus pandemic and transition to a digital and sustainable economy.

By a way of delivering on its commitments from the revised Action Plan, the Commission has published on 25 November 2021 a package of four legislative proposals that aim to contribute to achieving the CMU objectives and boost European capital markets.

The package contains the following legislative proposals:

  1. Regulation establishing a European Single Access point (ESAP)
  2. Regulation amending Regulation on European long-term investment funds (ELTIF)
  3. Directive amending the Alternative Investment Funds Managers Directive (AIFMD) and UCITS Directive
  4. Regulation amending the Markets in Financial Instruments Regulation (MiFIR)

The main proposals contained in these proposed legislative acts can be summarised as follows:

The European Single Access Point

With the idea of creating a common source of public information about EU companies and investment products, the European Securities and Markets Authority (ESMA) shall establish the European Single Access Point (ESAP) by 2024. The information that will be publicly accessible on the ESAP will be collected by designated collection bodies and will be accessible through a single application-programming interface (API). By providing data in digital format (data extractable or machine-readable format), the ESAP is intended to be a cornerstone of the EU Digital Finance Strategy that would enable planned transition to data-driven finance.

Further, when it comes to existing EU policy on sustainable growth (anchored in the EU Green Deal and the Sustainable Finance Strategy) companies in the EU are currently faced with significant challenge of how to obtain relevant ESG information based on which they can ensure their compliance with relevant rules on corporate sustainability reporting or financial sustainability disclosure requirements. To that end, the ESAP shall also serve as a centralised access point for all ESG data of EU companies and information on ESG related financial products with a great potential to boost the green transition.

Review of the ELTIF Regulation

Back in 2015, the first Regulation on European-long-term investment funds (ELTIFs) was published with the aim to enable channelling of long-term financing to listed and non-listed small and medium enterprises as well as long-term infrastructure projects in the EU.  Despite the ambitious plan behind it, the Regulation did not seem to have achieved much so far: the number of ELTIFs in the EU remains relatively small with only 57 funds authorised by October 2021 in only four EU Member States.

The proposed amendments aim to make the ELTIF framework more attractive for the fund management industry by expanding the range of eligible investment assets and making necessary amendments to authorisation, operational and marketing requirements. Further, specific regime for ELTIFs that are to be marketed to professional investors, featured by new rules on portfolio diversification and composition, minimum threshold for eligible assets and concentration limits, will be introduced. The existing minimum investment threshold of EUR 10 000 shall also be removed to enable easier access to ELTIFs for retail investors.

Review of the AIFMD and UCITS framework

More than a year after the ESMA has sent its letter to the EU Commission with 19 key areas of improvement for AIFMD framework, the EU lawmaker has published a long-awaited proposal for the revision of the AIFMD (Directive 2011/61/EU).  Focused on establishing similar rules in certain areas for both AIFs and UCITS, the proposal makes some amendments to UCITS Directive (Directive 2009/65/ec) as well that largely follow amendments to AIFMD framework.

The proposal makes changes to AIFMD and UCITS framework in several areas that include, among other, the following:

  • Loan originating funds

Rules on loan originating AIFs will be harmonised to ensure a uniform level of investor protection and create a level playing field for loan originating AIFs in the EU. To that end, AIFMs that manage AIFs engaging in lending activities will need to comply with additional requirements on risk management and conflict of interest as well as risk-retention requirements when it comes to sale of granted loans in the secondary market. In the future, loan originating AIFs whose notional value of their originated loans exceeds 60 % of their net asset value, will need to be structured as closed-ended funds.

  • Delegation arrangements

The proposal clarifies that all activities listed in Annex I of the AIFMD (Annex II of the UCITS Directive) can be subject to delegation and the revised language is now referring to services and not only functions (like portfolio management or risk management). The new framework will continue allowing sourcing of expertise from third countries based on delegation arrangements, which certainly comes as a relief for the fund management industry after years of discussion on how the future of delegation arrangements will look like in the post-Brexit world. Further, NCAs will be required to notify ESMA about delegation arrangements where more risk or portfolio management function is delegated to third country entities than retained by an EU-AIFM.

  • Substance requirements

Fund managers applying for authorisation under AIFMD or UCITS framework will need to have appropriate technical and human resources and will need to describe in detail in their license applications how these resources will be used to carry out their functions and supervise the delegates. Further, in order to meet minimum substance requirements, all AIFMs and UCITS management companies will have to employ at least two persons (or engage two persons on a contractual basis) who are residents in the EU on a full-time basis.

Due to their significance and comprehensiveness, we will elaborate the changes introduced to AIFMD and UCITS framework in a separate publication in which we will also analyse their practical impact on the fund management industry in the EU.

Consolidated Tape

Through targeted amendments of the backbone of the EU market infrastructure regulation, MiFIR, the Commission intends to introduce a long-awaited consolidated tape that would provide access to data on prices and volume of traded securities in the EU. Currently, only a handful of large professional investors have access to near real-time market data across trading venues.

The introduction of a consolidated tape shall enable all investors, both large and small, the access to consolidated data on prices and volume for several asset-classes, such as shares, exchange-traded funds and bonds. The relevant market data will need to be submitted by market operators to consolidated tape provider (entity authorised under MiFID II) and Member States are required to provide for sanctions for entities not operating in compliance with this rule.

Ban of the Payment for order flow (PFOF) practice

The package also includes a Regulation that introduces a ban of the widely discussed and criticized market practice used by many new online brokers nowadays, payment for order flow (PFOF). Namely, for several years now, many new online brokers that promote the “zero-commission policy” (also referred to as “neo-brokers”) have been building their business models on the PFOF practice. When relying on the PFOF, an online broker routes his clients’ orders to a market maker for execution and receives a fee in exchange for this.

The PFOF was an area of concern of the EU regulators for quite some time now, and the Commission has expressed its concerns that brokers’ reliance on PFOF may lead to retail orders not being executed on terms most favourable to the client but instead on the terms most profitable to brokers. The published proposal is now prohibiting all investment firms operating in the EU, who act on behalf of clients, from receiving any fee, commission or non-monetary benefit from any third party in exchange for forwarding them client orders for execution.

We will analyse this important topic, which promises to have a significant impact on businesses of many neo-brokers in the EU, in a separate article in more detail.

Outlook

The published proposals represent important milestones on the way towards creating a Capital Markets Union for Europe and will definitely have an impact on existing business of many firms in the financial services sector. The Commission is planning to deliver on all of its commitments from the Action Plan until the end of its term, and is planning to present further legislative proposals in 2022 on open finance and listing rules as well as proposals creating frameworks on corporate insolvency and financial literacy.

The EU Crowdfunding Regulation starts to apply: Overview & Practical Considerations (Part 1)

Introduction

On 10 November 2021, the long-awaited EU Regulation on European Crowdfunding Service Providers, for business (Regulation (EU) 2020/1053) (the ECSPR) that aims to create a harmonised regulatory framework for crowdfunding platforms in the EU has started to apply. The ECSPR was published in the EU Official Journal on 20 October 2020 after more than 2 years of long and intense discussions between EU lawmakers.

Unlike in the US where the first crowdfunding regulation was introduced already back in 2015[1], the EU did not have a common regulatory approach to this innovative way of fundraising which enables investors to directly invest in different projects of predominantly start-up companies and SMEs via online platforms. This lack of a harmonised regulatory framework has led to the creation of significant divergences in national rules on crowdfunding of various EU Member States which has been recognised as the main impediment to the provision of crowdfunding services on a cross-border basis in the EU.

With the aim of overcoming existing divergences in national frameworks, new Regulation provides a level-playing field for crowdfunding platforms in the EU, by introducing a harmonized set of rules that will be enable European crowdfunding service providers (CSPs) to explore the full potential of the EU single market.

In this first part of our publication we will analyse the scope of application of the ECSPR and the authorisation requirement that prospective CSPs will need to fulfil under the new regime.

Scope

The new EU framework on crowdfunding will cover two most common crowdfunding practices:

  1. the facilitation of granting of loans (lending based crowdfunding)
  2. placement of transferable securities and/or instruments admitted for crowdfunding purposes and/or reception and transmission of investors orders with respect to such instruments (investment based crowdfunding)

Only crowdfunding offers with a consideration not exceeding EUR 5,000,000 per project owner over a 12 month period will be under the scope of the ECSPR. Offers exceeding this threshold will need to be made in accordance with general requirements on public offering of transferable securities and provision of regulated financial services (e.g. under Prospectus Regulation, MiFID II etc.).

It is worth mentioning that some other types of crowdfunding practices, like donation-based crowdfunding or reward-based crowdfunding (in which case investors receive a non-financial consideration for their investment), will not be directly covered by the ECSPR.

Investment based crowdfunding

In terms of investment based crowdfunding, the ECSPR covers the placement of both transferable securities as well as other instruments admitted for crowdfunding purposes.

Transferable securities

The definition of transferable securities under the ECSPR is based on the definition under Art. 4 (1) (44) MIFID II. In the wake of ever-increasing use and popularity of crypto-assets the legitimate question that can be asked is whether crypto-assets can also be used for the purposes of fundraising in accordance with the new regime on investment based crowdfunding under the ECSPR? See our detailed analysis on this topic in our previous article.

Instruments admitted for crowdfunding purposes

This is a new definition introduced by the ECSPR which basically refers to shares in private limited companies issued by the project owner (or an SPV) that are not subject to transferability restrictions under national law. To this end, the EU lawmaker has decided to leave national lawmakers the possibility to allow or prohibit the use of shares in private limited companies for crowdfunding purposes. In Germany for instance, shares in private limited companies (Gesellschaften mit beschränkter Haftung „GmbH“) will not be suitable instruments for crowdfunding purposes, given that their transfer is subject to notarisation under national law.

Lending based crowdfunding

When it comes to facilitation of granting of loans the EU lawmaker emphasises that this crowdfunding practice shall be clearly distinguished from activities of regulated credit institutions that grant credits for their own account and take deposits or other repayable funds from the public. The operator of a crowdfunding platform acts as an intermediary who merely facilitate the conclusion of a loan agreement between the fundraiser (project owner) and the lender (investor) without at any moment acting as a lender or a fundraiser itself.

Under the ECSPR the term “loan” refers solely to an agreement in which a defined amount of money is made available to the project owner for an agreed period of time and which creates an unconditional repayment obligation of the lent amount (together with accrued interest) to investor in accordance with the instalment payment schedule. Despite seeming quite straight forward, this definition excludes certain types of loan agreements like for instance qualified subordinated loan agreements that have been frequently used in Germany as a way of circumvention of onerous national requirements on fund raising and lending.

Authorisation requirements

Legal entities that provide crowdfunding services within the meaning of the ECSPR will need to obtain authorization from the national competent authority (NCA) in their Member State of establishment and once authorized, they will be able to provide crowdfunding services across the EU on a cross-border basis (based on the EU passport for the provision of crowdfunding services).

Apart from being located in the EU, the prospective CSPs will also be required to fulfil a number of regulatory requirements for the purposes of authorisation under the new regime that can be summarized as follows:

Prudential requirements

Prudential safeguards need to be put in place in the form of own funds, insurance policy or combination of both equal to amount of at least the highest between:

  1. EUR 25.000, or
  2. one quarter of the fixed overheads of the preceding year, reviewed annually, including the cost of servicing loans for three months when the CSP also facilitate the granting of loans.

Entities that are already subject to CRR regime or are authorised as electronic money institution (under EMD) or payment services provider (under PSD 2) are not required to fulfil additional prudential requirements under this Regulation.

Conflict of interest & Inducements

In order to prevent potential conflict of interest, CSPs will be prohibited from having participation in crowdfunding offers offered on their platforms as well as from offering crowdfunding offers of persons closely related to them (i.e. their shareholders having more than 20% of shares/voting rights, their managers, employees or persons related to them).

The ECSPR also stipulates a „mini ban on inducements“ for CSPs by prohibiting them from paying or receiving any remuneration, discount or non-monetary benefit for routing investor’s orders to a particular crowdfunding offer offered on their or a third party platform.

Due diligence

Prior to listing crowdfunding offer on their platform, CSPs will be required to perform the necessary due diligence as regards whether the project owner has a criminal record and/or place of incorporation in a non-cooperative jurisdiction or high-risk third country. 

Provision of asset safekeeping & payment services

Given that in the course of crowdfunding intermediation, platforms usually need to collect investors’ funds (i.e. via wire transfer/credit card payment), place them on a designated account and then transfer them to the project owner account, the ECSPR sets clear boundaries with respect to provision of other regulated activities that can be essential part of this process. To that end, CSPs will be prohibited from providing payment services unless they hold a separate authorisation under the Payment Services Directive (PSD II) as well as custody services with respect to transferable securities where they are not authorised under the MiFID II or CRD IV framework.

Therefore, where CSPs do not hold above mentioned licenses to provide these services on their own, they will have to enter into cooperation arrangements with authorised third parties and inform their clients about relevant terms and conditions of service agreements and the fact that services will be provided by a third party.

Indirect effect of the AML/CTF rules

Besides bringing payment transactions for crowdfunding purposes indirectly under the scope of AML/CTF rules (by virtue of the fact that all payments will have to run through authorised payment providers that are obliged entities under the EU AMLD framework) the ECSPR does not explicitly bring CSPs on the list of obliged entities that are required to comply with rules on prevention of money laundering and terrorist financing. The recently published proposal of the EU AML/CTF Regulation, which we have analysed in our previous article, adds only crowdfunding service providers, operating outside the scope of the ECSPR to the list of obliged entities that are required to comply with AML requirements. Nevertheless, in one of its recitals[2] the ECSPR specifies that the EU Commission shall assess the necessity of adding the CSPs on the list of obliged entities in the future.

Individual portfolio management of loans

Allocation of pre-determined amounts of investors’ funds to one or several crowdfunding projects by CSPs in accordance with individual mandate will be defined as a provision of portfolio management services under the ECSPR in the case of which CSPs will be required to comply with additional requirements. The CSPs will have to properly define investment parameters for each portfolio management mandate and put in place effective systems and procedures on risk management, record-keeping and regular reporting to investors.

In the second part of our publication we will analyse the investor protection requirements that the prospective CSPs will need to comply with as well as the impact of the ECSPR on national regulatory framework in Germany.


[1] https://www.sec.gov/news/pressrelease/2015-249.html

[2] Recital 32 of the Regulation (EU) 2020/1503

Investment based crowdfunding and crypto assets – Challenges ahead

Crowdfunding Regulation

With the aim to overcome existing divergences in national frameworks on crowdfunding, in October 2020 the EU has adopted and published the long awaited final text of the Regulation on crowdfunding service providers (Regulation (EU) 2020/1503), the European Crowdfunding Service Provider Regulation “ECSPR”). The ECSPR provides a level-playing field for crowdfunding platforms in the EU, by introducing a harmonized set of rules that will be enable European crowdfunding service providers (CSPs) to explore the full potential of the EU single market.

The ECSPR covers two main types of practices used by crowdfunding platforms:

  1. Facilitation of granting loans (lending based crowdfunding)
  2. Placement of transferable securities within the meaning of Art. 4 para. 1 Nr. 44 MiFID II and/or instruments admitted for crowdfunding purposes that basically refer to shares in private limited companies that are not subject to restrictions that would effectively prevent them from being transferred (investment based crowdfunding)

Offers of financial instruments, either transferable securities or above-described instruments admitted for crowdfunding purposes under national law, of a single project owner whose total consideration is not exceeding 5.000.000 EUR will be eligible to be treated as crowdfunding offers and thereby will be exempted from more onerous requirements stipulated by EU and national rules on securities prospectus and securities issuing requirements.

The ECSPR will start to apply as of 10 November 2021. Crowdfunding service providers operating already under national regimes are provided with a 12-month transitional period within which they will have to ensure compliance with new rules.

Given that the ECSPR is primarily aimed to regulate crowdfunding service providers, the exact scope of application of the investment based crowdfunding in respective EU Member State can only be assessed based on relevant provisions of national law that implement MiFID II definition of transferable securities and define instruments that may fall under the definition of instruments admitted for crowdfunding purposes.

Investment based crowdfunding with crypto-assets – the new frontier?

In the wake of the ever increasing use of crypto-assets for fund raising, the legitimate question that can be raised is whether the crypto-assets can also be used for the purposes of fund raising in accordance with the new regime on investment based crowdfunding under the ECSPR.

Currently, most EU Member States do not stipulate de jure the possibility of issuing transferable securities via DLT or similar technology. However, majority of supervisory authorities across the EU tend to assess the legal status of each crypto-asset on a case by case basis by assessing its features based on various criteria like the level of standardization, tradability on financial markets etc.

  • Debt securities

In relation to crypto-assets with features of debt financial instruments (bonds, derivatives etc.) most supervisory authorities in the EU have taken pragmatic approach by assessing their legal status on a case by case basis and by treating them in accordance with applicable rules on issuance of financial instruments within the meaning of MiFID II. Nevertheless, there are also certain potential impediments to the issuance of debt transferable securities in tokenized form. These are particularly related to requirements under CSDR (e.g. requirement for transferable securities to be registered with CSD in book-entry form) as well as potential obstacles in national legislation like requirement for transferable securities to be represented in the form of a global certificate in physical form.

  • Equity securities

In addition to above mentioned challenges to tokenization of debt securities, the issuing of equity securities in tokenized form (in their literal meaning) has been prevented in most EU Member States due to open legal questions arising from company law that is barely harmonized at the EU level. Therefore, the possibility of using the new crowdfunding regulatory framework for the issuance and placement of equity based transferable securities depends largely on provisions of company law and securities law at national level. The recently published German Act on Electronic Securities (eWpG), which has for the first time allowed the issuing of securities in Germany in electronic or even crypto-form, is also one good example of how the issuing of tokenized shares can hardly be enabled by amendments of securities legislation. Due to related company law issues, German legislator has decided to make new provisions of eWpG solely applicable to debt instruments and units in investment funds, by leaving companies shares out of the scope of its application for the time being.

  • Reform of the MiFID II definition of financial instruments

With the intention to overcome the regulatory uncertainty around the application of MiFID II framework to crypto assets with features of financial instruments the European Commission has proposed in September 2020 a Directive that shall, among other, amend the MiFID II definition of financial instruments.

The new definition will be covering all types of financial instruments under MiFID II (including transferable securities) issued via DLT or similar technology as well. Due to the fact that MiFID II is a Directive, the revised definition will still need to be implemented into national law and currently significant divergences exist in national definitions of financial instruments across the EU. Last but not least, previously mentioned company law issues that prevent issuance of tokenized shares in many EU Member States and new laws on issuance of crypto-securities that fall short of covering all types of financial instruments in certain Member States (like in Germany) will represent challenges that will still need to be addressed. Until the new regime based on the expanded MIFID II definition becomes operational prospective the issuers of security tokens will still need to rely on national laws and the wide interpretative discretion of national supervisory authorities.

  • Instruments admitted for crowdfunding purposes

Looking into the issuing of instruments admitted for crowdfunding purposes (shares in private limited companies) in tokenized form, the picture doesn’t seems to be brighter either. The ECSPR stipulates explicitly that its definition and scope of application in relation to admitted instruments for crowdfunding purposes applies without prejudice to requirements under national laws that govern their transferability, such as the requirement for the transfer to be authenticated by a notary. To that end, EU Member States have a final say when it comes to deciding whether shares in private companies will be eligible to be used for crowdfunding purposes under the new regime. There is a fairly big chance that certain Member States will exclude shares in private limited companies from the scope of application of the new regime at national level by stipulating gold-platting provisions in national law. For instance, heavily criticized national transposition law in Germany, which was published in March this year, stipulates such an exclusion that will prevent shares in private limited companies of being used for crowdfunding offers under the new regime. Despite the fact that such measure would most probably just result in incorporation of fund raising SPVs in other EU jurisdiction (whose shares can still be offered on crowdfunding platforms anywhere in the EU) it cannot be excluded that some other EU Member State will follow similar approach.

Conclusion

Against the backdrop of everything mentioned above, it is fair to conclude that prospective fund raisers intending to leverage the new regime on crowdfunding as a less onerous regulatory framework comparing to regime under Prospectus Regulation will still largely need to ensure compliance with national laws in respective Member States from where they are intending to operate / set up an SPV for fund raising. The proposed EU Regulation on markets in crypto-assets (MiCAR) doesn’t seem to provide any further clarity to this topic either, because its scope of application will be limited solely to crypto assets that do not qualify as financial instruments under the MiFID II framework.

Therefore, despite the fact that the ECSPR has achieved significant progress in harmonization of rules on crowdfunding in the EU, there are still many challenges ahead that will need to be addressed before the crowdfunding as an alternative finance model starts to leverage DLT and crypto-assets in full capacity.


Langsam wird es ernst: Die neue Mantelverordnung zum Wertpapierinstitutsgesetz

In wenigen Wochen, nämlich am 26. Juni 2021, wird das neue Wertpapierinstitutsgesetz („WpIG“) in Kraft treten. Durch das WpIG wurde ein eigenes Aufsichtsregime für Wertpapierfirmen geschaffen und sog. kleine und mittlere Wertpapierinstitute aus dem Aufsichtsregime des Kreditwesengesetzes („KWG“) herausgelöst. Letzteres wird in Zukunft nur noch für bankenähnliche, sog. große Wertpapierfirmen, gelten. Das neue WpIG haben wir bereits hier und hier ausführlich vorgestellt.

Anfang Mai diesen Jahres hat die Bundesanstalt für Finanzdienstleistungsaufsicht („BaFin“) ihre Konsultation zur Mantelverordnung zum WpIG veröffentlicht. Darin hat sie Entwürfe der

  • Wertpapierinstituts-Prüfungsberichtsverordnung („WpI-PrüfbV),
  • Wertpapierinstituts-Vergütungsverordnung („WpI-VergV“),
  • Wertpapierinstituts-Inhaberkontrollverordnung („WpI-IKV“) und der
  • Wertpapierinstituts-Anzeigenverordnung („WpI-AnzV“)

zur Ergänzung und Vervollständigung des neuen Aufsichtsregimes des WpIG veröffentlicht. Bis Ende Mai konnten Stellungnahmen dazu abgegeben werden. Im Folgenden stellen wir die einzelnen Verordnungen im Überblick vor.

Die Wertpapierinstituts-Prüfungsberichtsverordnung

Die WpI-PrüfbV regelt den Gegenstand und den Zeitpunkt der Prüfung des externen Wirtschaftsprüfers, denen sich die verpflichteten Wertpapierinstitute unterziehen müssen, sowie den Inhalt und die Form der vom externen Prüfer anzufertigenden Prüfungsberichte. Damit werden die §§ 77 ff WpIG konkretisiert. Die WpI-PrüfbV wird nur für kleine und mittlere Wertpapierinstitute gelten. Große Wertpapierinstitute werden weiterhin der nach dem KWG ergangenen Prüfungsverordnung (PrüfbV) unterliegen.

Die Wertpapierinstituts-Vergütungsverordnung

Die WpI-VergV wird die Artikel 30 bis 34 der Richtlinie EU 2019/2034 über die Beaufsichtigung von Wertpapierfirmen („IFD“) umsetzen. Inhaltlich orientiert sie sich an der nach dem KWG erlassenen Instituts-Vergütungsverordnung, ist aber in ihrem Umfang deutlich schlanker.

Nach § 3 der WpI-VergV trägt die Geschäftsleitung die Verantwortung für die angemessene Ausgestaltung der Vergütungssysteme. Es werden Kriterien vorgegeben, wann von einer angemessenen Ausgestaltung des Vergütungssystems auszugehen ist (§ 5 WpI-VergV). Die Vergütungsstrategie und die Vergütungssysteme des Wertpapierinstituts müssen auf die Erreichung der Ziele ausgerichtet sein, die in den Geschäfts-und Risikostrategien des Instituts niedergelegt sind (§ 4 WpI-VergV). Damit sollen Fehlanreize verhindert werden. Entsprechend der Instituts-Vergütungsverordnung sind insbesondere auch die Anforderungen an die variable Vergütung detailliert geregelt (§ 6 WpI-VergV). Die Grundsätze zum Vergütungssystem sind vom Institut schriftlich niederzulegen und zu dokumentieren (§ 9 WpI-VergV).

Zudem sieht die WpI-VergV vor, dass das Wertpapierinstitut darauf hinwirkt, dass bestehende Verträge mit den Mitarbeiterinnen und Mitarbeitern, die mit den Vorgaben der WpI-VergV nicht vereinbar sind, angepasst werden (§ 12 WpI-VergV). Schließlich werden auch die Aufgaben des Vergütungskontrollausschusses und die Offenlegungspflichten in Bezug auf die Vergütung geregelt (§§ 13, 14 WpI-VergV).

Die WpI-VergV wird nur für mittlere Wertpapierinstitute gelten. Für kleine Wertpapierinstitute sieht das WpIG eine entsprechende Befreiung vor. Große Wertpapierinstitute unterliegen weiterhin der Instituts-Vergütungsverordnung nach dem KWG.

Die Wertpapierinstituts-Inhaberkontrollverordnung

Die WpI-IKV regelt, welche Informationen und Unterlagen bei einer im Rahmen des Erlaubnisverfahrens bzw. sonstigen Inhaberkontrolle eines Wertpapierinstituts bei der BaFin einzureichen sind. Inhaltlich orientiert sie sich an der Inhaberkontrollverordnung des KWG, ist aber wesentlich schlanker, da die Inhaberkontrolle bei Wertpapierfirmen seit einiger Zeit EU-weit einheitlich (Delegierte Verordnung (EU) 2017/1946) geregelt ist; so konkretisiert die WpI-IKV zum Teil (lediglich) die Vorgaben der Delegierten Verordnung (§ 6 WpI-IKV). Die WpI-IKV gilt für kleine, mittlere und große Wertpapierinstitute.

Die Wertpapierinstituts-Anzeigenverordnung

Die WpI-AnzV orientiert sich inhaltlich an der Anzeigeverordnung nach dem KWG (AnzV). Sie konkretisiert die Anzeigepflichten nach §§ 64 ff WpIG und verweist auf entsprechend zu verwendende Formulare, die sich im Anhang der WpI-AnzV befinden. Je nach konkreter Anzeigepflicht ist danach zu unterscheiden, ob z.B. alle Wertpapierinstitute verpflichtet sind (§ 64 WpIG), nur große Wertpapierinstitute (§ 65 WpIG), nur kleine und mittlere Wertpapierinstitute (§ 66 WpIG) oder die Geschäftsleiter eines Wertpapierinstituts (§ 67 WpIG). Die WpI-AnzV gilt deshalb, je noch konkreter Anzeigepflicht, für kleine, mittlere und große Wertpapierinstitute.

Fazit Die Mantelverordnung soll zusammen mit dem WpIG, also am 26. Juni 2021 in Kraft treten. Das neue Aufsichtsregime für Wertpapierfirmen nimmt damit nun endgültig konkrete Gestalt an. Durch die Mantelverordnung kann das WpIG nunmehr auch gut in der Praxis umgesetzt werden und den Besonderheiten der Wertpapierinstitute bzw. der von ihnen ausgehenden Risiken wird passgenau Rechnung getragen.