New European regulation for crowdfunding service providers

Scope

The regulation covers both equity based and loan based crowdfunding. The rules apply to offers with a counter value of less than €5,000,000, over a 12-month period. Offers above that amount over the 12-month period do not fall within the scope of this regulation. In the latter case, the Prospectus Regulation may apply.

AFM license

As of November 10, 2022, crowdfunding services may only be offered by legal entities that have obtained a license from the regulator. In the Netherlands, this is the Dutch Authority for the Financial Markets (AFM).

The licensing will be subject to requirements regarding, among others, the following subjects:

• expertise and reliability of policymakers;
• prudential requirements;
• policy on outsourcing;
• policy on customer complaints.

In addition, there are requirements concerning the distinction between experienced and non-experienced clients and acting in accordance with the client’s interests. There are also requirements concerning the suitability of the service for inexperienced prospective clients and the protection of these inexperienced (prospective) clients.

Discussion boards: a secondary market

In line with the regulation, crowdfunding service providers are allowed to provide a discussion board as a source of third-party endorsement. On these discussion boards, investors can advertise buying and selling intentions for loans, securities or other admitted instruments originally offered on their platform. However, the discussion board may not function as an internal matching system for client orders unless the legal entity also has a separate MiFID II license or a regulated market license.

PSD2: offering payment services via the platform

The provision of crowdfunding services does not include the provision or offering of payment services, as referred to under PSD2. This means that crowdfunding service providers who wish to offer PSD2 payment services in relation to their crowdfunding services must also have a PSD2 license or exemption. Charco & Dique advises these parties to take into account the time it takes to apply for a PSD2 license, and the requirements that must then be met.

Want to know more?

Do you want to know more about the regulation, or do you need advice on license applications? Charco & Dique can help you qualify your services. In consultation with you, we will determine whether – and if so, for which services – a license must be obtained. After that, we can help you organize your application file. Please feel free to contact us for more information.

After obtaining your regulatory license, we can help you keep up with the supervisors requirements. Our compliance software Ruler offers a legal framework for crowdfunding service providers, providing you with an overview of all laws and regulations relevant to your organization. This way you have all information in one place, always up to date.