Annexes to COM(2018)113 - European Crowdfunding Service Providers (ECSP) for Business - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)113 - European Crowdfunding Service Providers (ECSP) for Business. |
|---|---|
| document | COM(2018)113  |
| date | October 7, 2020 |
(4) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
(5) Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).
(6) Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC (OJ L 168, 30.6.2017, p. 12).
(7) Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35).
(8) Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).
(9) Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (OJ L 267, 10.10.2009, p. 7).
(10) Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).
(11) Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on investor-compensation schemes (OJ L 84, 26.3.1997, p. 22).
(12) Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ L 173, 12.6.2014, p. 149).
(13) Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ L 305, 26.11.2019, p. 17).
(14) OJ L 123, 12.5.2016, p. 1.
(15) Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 331, 15.12.2010, p. 12).
(16) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
(17) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).
(18) Directive (EU) 2020/1504 of the European Parliament and of the Council of 7 October 2020 amending Directive 2014/65/EU on markets in financial instruments (see page 50 of this Official Journal).
(19) Regulation (EU) No 1075/2013 of the European Central Bank of 18 October 2013 concerning statistics on the assets and liabilities of financial vehicle corporations engaged in securitisation transactions (OJ L 297, 7.11.2013, p. 107).
(20) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1).
(21) Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019 on the prudential requirements of investment firms and amending Regulations (EU) No 1093/2010, (EU) No 575/2013, (EU) No 600/2014 and (EU) No 806/2014 (OJ L 314, 5.12.2019, p. 1).
(22) Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs) (OJ L 352, 9.12.2014, p. 1).
(23) Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).
(24) Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).
ANNEX I
KEY INVESTMENT INFORMATION SHEET
Part A: Information about the project owner(s) and the crowdfunding project
| (a) | Identity, legal form, ownership, management and contact details; |
| (b) | All natural and legal persons responsible for the information given in the key investment information sheet. In the case of natural persons, including members of the project owner’s administrative, management or supervisory bodies, indicate the name and function of the natural person; in the case of legal persons, indicate the name and the registered office. The following responsibility statement: ‘The project owner declares that, to the best of its knowledge, no information has been omitted or is materially misleading or inaccurate. The project owner is responsible for the preparation of this key investment information sheet.’; |
| (c) | Principal activities of the project owner; products or services offered by the project owner; |
| (d) | A hyperlink to the most recent financial statements of the project owner, if available; |
| (e) | Key annual financial figures and ratios for the project owner for the last three years, if available; |
| (f) | Description of the crowdfunding project, including its purpose and main features. |
Part B: Main features of the crowdfunding process and, as applicable, conditions for the capital raising or funds borrowing
| (a) | Minimum target capital to be raised or target funds to be borrowed in a single crowdfunding offer and the number of offers that have been completed by the project owner or crowdfunding service provider for the crowdfunding project; |
| (b) | Deadline for reaching the target capital to be raised or the target funds to be borrowed; |
| (c) | Information on the consequences if the target capital is not raised or the target funds are not borrowed by the deadline; |
| (d) | The maximum offer amount when different from the target capital or the target funds referred to in point (a); |
| (e) | Amount of own funds committed to the crowdfunding project by the project owner; |
| (f) | Change of the composition of the project owner’s capital or loans related to the crowdfunding offer; |
| (g) | The existence and conditions of a pre-contractual reflection period for non-sophisticated investors. |
Part C: Risk Factors
Presentation of the main risks associated with funding the crowdfunding project, with the sector, the project, the project owner and the transferable securities, admitted instruments for crowdfunding purposes or loans, including, where relevant, geographic risks.
Part D: Information related to the offer of transferable securities and admitted instruments for crowdfunding purposes
| (a) | Total amount and type of transferable securities or admitted instruments for crowdfunding purposes to be offered; |
| (b) | Subscription price; |
| (c) | Whether oversubscriptions are accepted and how they are allocated; |
| (d) | Terms of subscription and payment; |
| (e) | Custody and delivery of transferable securities or admitted instruments for crowdfunding purposes to investors; |
| (f) | Where the investment is secured by a guarantee or a collateral:
|
| (g) | Where applicable, a firm commitment to buy back the transferable securities or admitted instruments for crowdfunding purposes and the time period for such a buy-back; |
| (h) | For non-equity instruments, the nominal interest rate, the date from which interest becomes payable, the due dates for interest payments, the maturity date and the applicable yield. |
Part E: Information on special purpose vehicles (SPV)
| (a) | Whether there is an SPV interposed between the project owner and the investor; |
| (b) | Contact details of the SPV. |
Part F: Investor rights
| (a) | Key rights attached to the transferable securities or admitted instruments for crowdfunding purposes; |
| (b) | Restrictions to which the transferable securities or admitted instruments for crowdfunding purposes are subject, including shareholder agreements or other arrangements preventing their transferability; |
| (c) | Description of any restrictions on the transferring of the transferable securities or admitted instruments for crowdfunding purposes; |
| (d) | Opportunities for the investor to exit the investment; |
| (e) | For equity instruments, distribution of capital and voting rights before and after the capital increase resulting from the offer (assuming that all the transferable securities or admitted instruments for crowdfunding purposes will be subscribed). |
Part G: Disclosures related to loans
Where the crowdfunding offer involves the facilitation of granting loans, the key investment information sheet shall, instead of the information referred to in Parts D, E and F of this Annex, contain information on the following:
| (a) | The nature, duration and terms of the loan; |
| (b) | The applicable interest rates or, where applicable, other compensation to the investor; |
| (c) | Risk mitigation measures, including the existence of collateral providers or guarantors or other types of guarantees; |
| (d) | The schedule for the repayment of the principal and payment of interest; |
| (e) | Any default on credit agreements by the project owner within the past five years; |
| (f) | The servicing of the loan, including in situations where the project owner does not meet its obligations. |
Part H: Fees, information and legal redress
| (a) | Fees charged to, and the costs incurred by, the investor in relation to the investment, including administrative costs resulting from the sale of admitted instruments for crowdfunding purposes; |
| (b) | Where and how additional information about the crowdfunding project, the project owner and the SPV can be obtained free of charge; |
| (c) | How and to whom the investor may address a complaint about the investment or about the conduct of the project owner or the crowdfunding service provider. |
Part I: Information on individual portfolio management of loans to be provided by crowdfunding service providers
| (a) | Identity, legal form, ownership, management and contact details of the crowdfunding service provider; |
| (b) | The minimum and maximum interest rate of loans that may be available to investors’ individual portfolios; |
| (c) | The minimum and maximum maturity date of loans that may be available to investors’ individual portfolios; |
| (d) | Where used, the range and distribution of risk categories that loans fall into, as well as the default rates and a weighted average interest rate per risk category with a further break down by the year in which the loans were granted through the crowdfunding service provider; |
| (e) | The key elements of the internal methodology for credit risk assessment of the individual crowdfunding projects and for defining the risk categories; |
| (f) | If a target rate of return on investment is offered, an annualised target rate and the confidence interval of this annualised target rate over the investment period, taking into account fees and default rates; |
| (g) | Procedures, internal methodologies and criteria for selection of the crowdfunding projects to the individual portfolio of loans for the investor; |
| (h) | Coverage and conditions of any applicable capital guarantees; |
| (i) | The servicing of portfolio loans, including in situations where a project owner does not meet its obligations; |
| (j) | Risk diversification strategies; |
| (k) | Fees to be paid by the project owner or the investor, including any deduction from the interest to be paid by the project owner. |
ANNEX II
SOPHISTICATED INVESTORS FOR THE PURPOSE OF THIS REGULATION
I. Identification criteria
A sophisticated investor is an investor who possesses the awareness of the risks associated with investing in capital markets and adequate resources to undertake those risks without exposing itself to excessive financial consequences. Sophisticated investors may be categorised as such if they meet the identification criteria set out in this Section, and if the procedure set out in Section II is followed.
The following natural and legal persons shall be regarded as sophisticated investors in all services offered by crowdfunding service providers in accordance with this Regulation:
| (1) | Legal persons meeting at least one of the following criteria:
|
| (2) | Natural persons meeting at least two of the following criteria:
|
II. Request for being treated as a sophisticated investor
Crowdfunding service providers shall make available to their investors a template that they may use to submit a request to be treated as a sophisticated investor. The template shall contain the identification criteria set out in Section I and a clear warning specifying the investor protection that a sophisticated investor will lose as a consequence of being classified as such.
A request to be treated as a sophisticated investor shall contain the following items:
| (1) | An attestation specifying the identification criteria set out in Section I that the requesting investor meets; |
| (2) | A statement that the requesting investor is aware of the consequences of losing the investor protection attached to the status of non-sophisticated investors; |
| (3) | A statement that the requesting investor remains liable for the veracity of the information provided in the request. |
The crowdfunding service provider shall take reasonable steps to ensure that the investor qualifies as a sophisticated investor and shall implement appropriate written internal policies to categorise investors. The crowdfunding service provider shall approve the request unless it has reasonable doubts that the information provided in the request is correct. The crowdfunding service provider shall explicitly notify investors when their status is confirmed.
The approval referred to in the third paragraph shall have a validity of two years. Investors that wish to maintain their sophisticated investor status after the expiry of the period of validity shall submit a new request to the crowdfunding service provider.
Sophisticated investors shall be responsible for keeping the crowdfunding service provider informed of any change which could affect their categorisation. Where the crowdfunding service provider becomes aware that the investor no longer fulfils the initial conditions which made the investor eligible for being treated as a sophisticated investor, the crowdfunding service provider shall inform the investor that he or she will be treated as a non-sophisticated investor.
III. Sophisticated investors that are professional clients
By way of derogation from the procedure set out in Section II of this Annex, entities referred to in points (1) to (4) of Section I of Annex II to Directive 2014/65/EU shall be regarded as sophisticated investors if they provide proof of their status of professionals to the crowdfunding service provider.