Crowdfunding Act (2021-2022*)

ACT ON CROWDFUNDING FOR BUSINESS VENTURES (DRAFT 29/09/2021)

[Crowdfunding Act]

used to implement the Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020 on European crowdfunding service providers for business ventures and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937

[Crowdfunding Regulation, ECSP Regulation, Regulation 2020/1503, ECSPR]

Summary

The ECSP Regulation, directly applicable in all Member States as of 11/10/2021, will impose obligations on Crowdfunding Service Providers (“CSPs”). The provision of crowdfunding services by a Polish entity will require a permit from the Polish Financial Supervision Authority. The Polish Financial Supervision Authority will become the supervisory authority responsible for ensuring compliance of Polish crowdfunding service providers with the ECSP Regulation and the Crowdfunding Act.

Impact

Until now, the operation of crowdfunding platforms used to finance business ventures in the so-called investment or loan crowdfunding model could, as a matter of principle, be carried out under the freedom of business activity, i.e. without the need to obtain any special permit. The ECSP Regulation will result in these activities becoming regulated activities requiring a special permit, subject to supervision by the Polish Financial Supervision Authority. Under the current draft crowdfunding act, conducting crowdfunding activities subject to the ECSP Regulation without the required permit will be punishable by a fine of up to PLN 5 million.

The ECSP Regulation defines “crowdfunding service” as matching investors interested in funding business ventures with draft owners using a crowdfunding platform, including any of the following activities:

  • facilitating lending (i.e. loan crowdfunding),
  • underwriting without underwriting guarantee, as referred to in Section A(7) of Annex 1 to Directive 2014/65/EU, in relation to transferable securities and instruments acceptable for crowdfunding, issued by draft owners or a special purpose vehicle, and accepting and transmitting customer orders, as referred to in point (1) of that Section, in relation to those transferable securities and instruments acceptable for crowdfunding (i.e. investment/equity crowdfunding).

In addition, the ECSP Regulation defines an individual loan portfolio management service (known as self-investment), which is not a separate type of crowdfunding service, but a loan facilitation service. The provision of such a service involves additional requirements related primarily to ensuring the safety of investors. One of the aforementioned requirements is the obligation to additionally notify the Polish Financial Supervision Authority of the intention to commence individual loan portfolio management services at least 3 months prior to their planned commencement.

The ECSP Regulation also stipulates that a crowdfunding service provider may engage in secondary market activities for financial instruments and loans related to crowdfunding services. The crowdfunding service provider will be entitled to maintain the so-called “message board” on its platform, where customers will be able to announce their interest in buying or selling particular financial instruments or loans that were originally offered via the platform of the provider. Unlike a traditional brokerage, the aforesaid message board will not include customer order execution functionality (contracts between customers in the secondary market will have to be concluded outside of the crowdfunding platform).

The ECSP Regulation and hence the Crowdfunding Act do not apply to:

  • crowdfunding services provided to consumer draft owners,
  • other services related to crowdfunding services and provided in accordance with the state law,
  • crowdfunding offers exceeding EUR 5 million over 12 months*

*in the period until 11/10/2023, the threshold of EUR 2.5 million will be applicable, i.e. the current threshold of the value of the public offering including the obligation to prepare a prospectus is excluded. 

Details:
ECSP Regulation and the Crowdfunding Act - table of contents
ECSP Regulation and the Crowdfunding Act – table of contents
ECSP Regulation and Crowdfunding Act – impact and requirements
ECSP Regulation and Crowdfunding Act – impact and requirements
ECSP Regulation and the Crowdfunding Act - what we provide
ECSP Regulation and the Crowdfunding Act – what we provide
ECSP Regulation and the Crowdfunding Act - FAQ
ECSP Regulation and the Crowdfunding Act – FAQ

MILESTONES CALENDAR

  • 11/10/2023 (i) the increase in the threshold for exemption from the obligation to draw up a prospectus and thus the maximum threshold for the value of an offer that a single entity will be able to make via a crowdfunding platform from EUR 2.5 million to EUR 5 million; (ii) the entry into force of the prohibition on publicly offering or advertising the subscription or acquisition of shares in a limited liability company
  • 10/11/2023 the end of the transitional period during which the crowdfunding service providers may continue, in compliance with applicable national law, to provide crowdfunding services without authorization
  • 07/14/2022 publication of the Act in the Journal of Laws of the Republic of Poland (link)
  • 07/07/2022 completion of work on the law in the Sejm. Transmission of the law to the President for signature (link)
  • 07/01/2022 referral of the bill as amended by the Senate to the Sejm
  • 06/10/2022 crowdfunding bill forwarded to the Senate (link)
  • 06/09/2022 crowdfunding law passed by the Sejm (link)
  • 05/19/2022 ESMA report on the possibility of extending the transitional period in accordance with Article 48(3) ECSPR (link)
  • 05/17/2022 referral of the draft crowdfunding bill to the Sejm (link)
  • 05/10/2022 deadline for EC to evaluate the implementation of the ECSP Regulation and decide on extension of transition period for existing CSPs by another 12 months
  • 07/02/2022 announcement of the final version of the crowdfunding act 02/02/2022 (link)
  • 11/10/2021 date of entry into force of the ECSP Regulation; planned date of entry into force of the Crowdfunding Act; deadline for ESMA and EBA to prepare most of draft RTS(ESMA draft RTS; EBA draft RTS)
  • 10/22/2021 deadline for comments on the draft crowdfunding act
  • 10/11/2021 announcement of the updated draft crowdfunding act 09/29/2021 (see discussion of amendments)
  • 05/04/2021 announcement of the draft crowdfunding act of 04/28/2021 (go to draft page)
See also:
Draft PSR (2023-2026*)

payments - uniform rules across the EU

Draft PSR (2023-2026*)
Draft PSD3 Directive (2023-2026*)

licensing - supervision - reauthorization

Draft PSD3 Directive (2023-2026*)
Data Act

access to data - digitisation - obligations of providers

Data Act
DLT pilot regulation (2022-2023)

services - licenses

DLT pilot regulation (2022-2023)
New Consumer Credit Directive (2021-2023*)

creditworthiness - ESG

New Consumer Credit Directive (2021-2023*)
Law on consumer pawn loan

Law on consumer pawn loan

Law on consumer pawn loan
Changes in banking and payment service outsourcing (2021-2022*)

outsourcing - sanctions - payment services

Changes in banking and payment service outsourcing (2021-2022*)
AML/CFT package (2021-2023*)

financial security measures - online ID - AMLA

AML/CFT package (2021-2023*)
Amendment to eIDAS Regulation (2021-2023*)

private sector - european digital identity wallet

Amendment to eIDAS Regulation (2021-2023*)
European Data Governance (DGA)

data sharing services - an altruistic approach to data

European Data Governance (DGA)

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