Under the settled case law of the Federal Court of Justice (Bundesgerichtshof, BGH), the protection inherent in the board and employment relationship with the director of a general partner GmbH of a GmbH &…
On 20 October 2020, the "Regulation (EU) 2020/1503 on European Crowdfunding Service Providers (ECSP) for Business" (ECSP-Regulation) was published in the Official Journal of the European Union.
To date, the legal admissibility of crowdfunding and crowdfunding platforms has been governed exclusively by national law. In Germany, crowdfunding service providers often operated as financial investment brokers with a license pursuant to Section 34f of the German Industrial Code (Gewerbeordnung). In practice, in order not to trigger any licensing obligations under Section 32 of the German Banking Act (Kreditwesengesetz) with regard to the financed companies (project owners) and the financing investors due to the operation of banking business in the form of deposit or lending business, loans are usually brokered with qualified subordination clauses or under involvement of a so-called fronting bank to formally issue the loans. The former has the disadvantage that investors only receive subordinated claims, the latter is associated with additional costs at the expense of the crowdfunding service providers' margin or the investors' return.
The ECSP-Regulation for the first time defines EU-wide requirements for the provision of crowdfunding services, the organization, licensing and supervision of crowdfunding service providers, as well as for the operation of crowdfunding platforms.
This also means that crowdfunding service providers will require a license in accordance with the ECSP-Regulation in the future. In Germany, the Federal Financial Supervisory Authority (BaFin) is responsible for granting such licenses. Project owners and investors operating via a licensed crowdfunding platform are dispensed from the aforementioned licensing requirements of the German Banking Act (Article 1 (3) of the ECSP-Regulation).
In addition, the ECSP-Regulation introduces for the first time an "European passport" for crowdfunding services, by means of which crowdfunding service providers licensed in one member state may also provide their services in other EU member states without further permission, merely on the basis of a notification procedure (Art. 18 ECSP-Regulation).
Crowdfunding services that are provided to project owners that are consumers are excluded from the scope of the ECSP-Regulation as well as crowdfunding offers with a consideration of more than EUR 5 million over a period of 12 months. In these cases, the national provisions remain applicable.
The regulation is directly applicable from 10 November 2021, i.e. without transposition into German law. The transition period ends on 10November 2022.
