8.11.2022 |
EN |
Official Journal of the European Union |
L 287/5 |
COMMISSION DELEGATED REGULATION (EU) 2022/2112
of 13 July 2022
supplementing Regulation (EU) 2020/1503 of the European Parliament and of the Council with regard to regulatory technical standards specifying requirements and arrangements for the application for authorisation as a crowdfunding service provider
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020 on European crowdfunding service providers for business, and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937 (1), and in particular Article 12(16), fourth subparagraph, thereof,
Whereas:
(1) |
To ensure a uniform mechanism by which competent authorities effectively exercise their powers in respect of applications for authorisation of prospective crowdfunding service providers, it is appropriate to set out common standard forms, templates, and procedures for such applications. |
(2) |
To facilitate communication between a prospective crowdfunding service provider and the competent authority, the competent authority should designate a contact point specifically for the purpose of the application process and should make the relevant contact details public on its website. |
(3) |
To enable the competent authority to thoroughly assess whether the application is complete, where the competent authority requires the prospective crowdfunding service provider to provide missing information, the time limit for the assessment of the completeness of the application referred to in Article 12(4) of Regulation (EU) 2020/1503 should be suspended from the date such information is requested until the date it is received by the competent authority. |
(4) |
To allow the competent authority to assess whether changes to the information provided in the application for authorisation may affect the procedure of authorisation, it is appropriate to require prospective crowdfunding service providers to communicate such changes without undue delay. Furthermore, it is necessary to establish that the time limits for the assessment of the information laid down in Article 12(8) of Regulation (EU) 2020/1503 apply from the date on which the amended information is provided by the applicant to the competent authority. |
(5) |
This Regulation is based on the draft regulatory technical standards submitted to the Commission by the European Securities and Markets Authority. |
(6) |
The European Securities and Markets Authority has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council (2). |
(7) |
The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council (3) and delivered an opinion on 1 June 2022, |
HAS ADOPTED THIS REGULATION:
Article 1
Designation of a contact point
Competent authorities shall designate a contact point for receiving the applications for authorisation as a crowdfunding service provider pursuant to Article 12 of Regulation (EU) 2020/1503. Competent authorities shall keep the contact details of the designated contact point up-to-date and shall make those contact details public on their websites.
Article 2
Standard form
Prospective crowdfunding service providers shall submit their application for authorisation using the standard form set out in the Annex.
Article 3
Acknowledgement of receipt
Within 10 working days from the receipt of the application and notwithstanding the time limit set out in Article 12(4) of Regulation (EU) 2020/1503 for the assessment of whether the application is complete in accordance with that Article, the competent authority shall send electronically, on paper, or in both forms, an acknowledgement of receipt to the prospective crowdfunding service provider. That acknowledgement of receipt shall include the contact details of the persons who will handle the application for authorisation.
Article 4
Time limit suspension in case of missing information
Where the competent authority requires the prospective crowdfunding service provider to provide missing information in accordance with Article 12(4) of Regulation (EU) 2020/1503, the time limit for the assessment of whether the application is complete in accordance with that Article shall be suspended from the date such information is requested until the date it is received.
Article 5
Notification of changes
1. The prospective crowdfunding service provider shall notify the competent authority of any changes to the information provided in the application for authorisation without undue delay. The prospective crowdfunding provider shall provide the updated information by using the standard form set out in the Annex.
2. Where prospective crowdfunding service provider provides updated information, the time limit laid down in Article 12(8) of Regulation (EU) 2020/1503 shall start to run from the date on which that updated information is received by the competent authority.
Article 6
Entry into force and application
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 July 2022.
For the Commission
The President
Ursula VON DER LEYEN
(1) OJ L 347, 20.10.2020, p. 1.
(2) 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).
(3) 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).
ANNEX
APPLICATION FOR AUTHORISATION AS CROWDFUNDING SERVICE PROVIDER
Information to be provided to the competent authority
Application for authorisation as crowdfunding service provider |
Information to be provided to the competent authority |
Field |
Sub-field |
Description |
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1 |
Applicant |
1 |
Full legal name |
Full legal name of the applicant |
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2 |
Trading name(s) |
Trading name(s) to be used to provide the crowdfunding services |
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3 |
Internet address |
Internet address of the website operated by the applicant |
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4 |
Physical address |
Registered address of the applicant |
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5 |
National ID/Registration number (where available) |
National identifier of the applicant or evidence of the registration with the national register of companies |
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6 |
LEI (where available) |
Legal entity identifier of the applicant |
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2 |
Name and contact details of the person in charge of the application |
1 |
Full name |
Full first name(s) and surname(s) of the contact person |
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2 |
Function |
Function and/or title of the contact person within the applicant or status as an external person (e.g., consultant, law firm) and proof that the person has the power to file the application |
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3 |
Postal address (if different from the physical address of the applicant) |
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4 |
Telephone number |
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5 |
Email address |
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3 |
Legal form |
n/a |
Legal form of incorporation under national legislation |
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4 |
Articles of association |
n/a |
Articles of association and, where available, deed of incorporation |
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5 |
Programme of operations setting out the types of crowdfunding services that the applicant intends to provide and the crowdfunding platform that it intends to operate, including where and how crowdfunding offers are to be marketed |
1 |
Information on the types of crowdfunding services |
The applicant shall indicate:
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2 |
Information on the crowdfunding platform |
Description of:
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3 |
Marketing strategy |
Description of the marketing strategy that the prospective crowdfunding service provider plans to use in the Union, including languages of the marketing communications; identification of the Member States where advertisements will be most visible in media and the expected means of communication that will be used |
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6 |
Description of the governance arrangements and internal control mechanism to ensure compliance with Regulation (EU) 2020/1503, including risk-management and accounting procedures |
1 |
Governance arrangements |
Description of:
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2 |
Internal control mechanisms |
Description of the internal control mechanism (such as compliance function and risk management function, where established) put in place by the applicant, in order to monitor and to ensure compliance of its procedures with Regulation (EU) 2020/1503, including information on reporting to the management body |
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3 |
Risk management |
A mapping of the risks identified by the applicant and a description of risk management policies and procedures to identify, manage and monitor risks related to applicant’s activities, processes and systems, including:
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4 |
Accounting procedures |
Description of the accounting procedures by which the applicant will record and report its financial information |
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7 |
Description of systems, resources and procedures for the control and safeguarding of the data processing system |
n/a |
Control and safeguarding of data processing system |
Description of:
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8 |
Description of operational risks |
1 |
Risks related to the IT infrastructure and procedures |
Description of the identified sources of operational risks and description of procedures, systems and controls adopted by the applicant to manage those operational risks (system reliability, security, integrity, privacy, etc.), including:
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2 |
Risk related to the determination of the offer |
Description of the technical tools and human resources dedicated to the offer determination, in particular the determination of the pricing in accordance with Article 4(4), point (d), of Regulation (EU) 2020/1503 |
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3 |
Risks related to the asset safekeeping services and to the payment services (where applicable) |
Where the applicant intends to provide asset safekeeping services and payment services, description of the identified sources of operational risks and description of procedures, systems and controls adopted by the applicant to manage those risks related to those services, including when those services are provided by a third party |
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4 |
Risks relating to outsourcing of operational functions |
Where the applicant intends to rely on a third party for the performance of operational functions, description of the identified sources of operational risks and description of procedures, systems and controls adopted by the applicant to manage those operational risks |
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5 |
Any other operational risk(s) (where applicable) |
Description of any other identified source(s) of operational risks and description of the procedures, systems and controls adopted by the applicant to manage those operational risks |
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9 |
Description of the applicant’s prudential safeguards in accordance with Article 11 of Regulation (EU) 2020/1503 |
1 |
Prudential safeguards |
The amount of the prudential safeguards that the applicant has in place at the time of the application for authorisation and the description of the assumptions used for its determination |
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2 |
Own funds (where applicable) |
The amount of the prudential safeguards covered by own funds referred to in Article 11(2), point (a), of Regulation (EU) 2020/1503 |
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3 |
Insurance policy (where applicable) |
The amount of the applicant’s prudential safeguards covered by an insurance policy as referred to in Article 11(2), point (b), of Regulation (EU) 2020/1503 |
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4 |
Forecast calculations and plans |
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5 |
Prudential safeguards planning |
Description of the applicant’s prudential safeguards planning and monitoring procedures |
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10 |
Proof that the applicant meets the prudential safeguards in accordance with Article 11 of Regulation (EU) 2020/1503 |
1 |
Own funds |
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2 |
Insurance policy |
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11 |
Description of the business continuity plan |
n/a |
Business continuity plan |
Description of the measures and procedures to ensure, in the event of failure of the prospective crowdfunding service provider, the continuity of the provision of critical services related to existing investments and sound administration of agreements between the prospective crowdfunding service provider and its clients, including, where applicable, provisions for the continued servicing of outstanding loans, client notification and handover of asset safekeeping arrangements |
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12 |
Proof of good repute of shareholders that directly or indirectly hold 20 % or more of the share capital or voting rights |
Sub-fields 1-10 shall be repeated and completed for each of the shareholders who directly or indirectly hold 20 % or more of the share capital or voting rights |
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Where the shareholder holding 20 % or more of the share capital or voting rights is not a natural person, sub-fields 8 and 9 shall be completed for the legal entity and repeated and completed for each member of the management body and other persons effectively directing the business |
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1 |
Ownership structure chart |
Ownership structure chart of the applicant showing the individual stake of shareholders who directly or indirectly hold 20 % or more of the share capital or voting rights |
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2 |
Name |
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3 |
Date and place of birth (where applicable) |
Date and place of birth of shareholders who are natural persons |
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4 |
Domicile or registered address |
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5 |
Additional information in case of legal persons |
Where the shareholder holding 20 % or more of the share capital or voting rights is a legal person a complete list of members of the management body and of persons who effectively direct its business, their name, date and place of birth, domicile, their national identification number where available |
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6 |
Amount of the holding |
Amount of the shares capital or voting rights held by the person in absolute value and in percentage terms. In case of indirect shareholder, the amount shall refer to the intermediate holder |
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7 |
Information in case of indirect holding |
Name and contact details of the person through which the share capital or voting rights are held |
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8 |
Proof of good repute |
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9 |
Pre-existing (and ongoing) assessment |
Information on whether an assessment of the good repute of the shareholder has already been (or is being) conducted by another competent authority or any other authority under other financial legislation, including the name of that authority and, where applicable, the date and outcome of its assessment |
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10 |
Information on the group structure (where applicable) |
Information on whether the applicant is:
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13 |
Identity of the natural persons responsible for the management of the applicant and proof that the natural persons involved in the management of the applicant are of good repute and possess sufficient knowledge, skills, and experience to manage the prospective crowdfunding provider and commit sufficient time to the performance of their duties |
Sub-fields 1-12 shall be repeated and completed for each natural person who is member of the management or supervisory bodies of the applicant, and for each natural person who effectively directs the business Sub-fields 1-8 and 10-11 shall be repeated and completed for each natural person who is responsible of internal control functions (where appointed) |
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1 |
Full name |
Full first name(s) and surname(s) of the relevant natural person |
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2 |
ID/Passport number |
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3 |
Date and place of birth |
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4 |
Domicile |
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5 |
Postal address |
Postal address, if different from the address of domicile |
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6 |
Telephone number |
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7 |
Email address |
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8 |
Position |
Position within the management body or the organisation of the applicant at which the natural person is/will be appointed |
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9 |
Proof of good repute |
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10 |
Curriculum Vitae |
Curriculum vitae stating:
The curriculum vitae may also include details (name, address, telephone number, email) of any reference person(s) who may be contacted by the competent authority (this field is not mandatory) |
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11 |
Time to be committed to the performance of the duties |
Information on the minimum time that will be devoted to the performance of the person’s functions within the prospective crowdfunding service provider (annual and monthly indications), including information on:
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12 |
Pre-existing (or ongoing) assessment of the reputation and experience |
The information on whether an assessment of the good repute and of the knowledge and experience of the natural person has already been (or is being) conducted by another competent authority or any other authority under other financial legislation including the date of the assessment, the identity of that authority and, where applicable, the date and the outcome of this assessment |
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13 |
Self-assessment of the collective knowledge, skills, and experience |
Details of the result of the assessment on the collective possession of sufficient knowledge, skills, and experience to manage the prospective crowdfunding provider by the natural persons involved in the management of the prospective crowdfunding service provider, performed by the applicant itself |
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14 |
Description of the internal rules to prevent persons referred to in the first subparagraph of Article 8(2) of Regulation (EU) 2020/1503 from engaging, as project owners, in crowdfunding services offered by the prospective crowdfunding service provider |
n/a |
Internal procedures on conflicts of interest of project owners |
Description of the relevant internal rules adopted by the applicant |
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15 |
Description of outsourcing arrangements |
n/a |
Information on outsourcing arrangements |
Description of:
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16 |
Description of procedures to handle complaints from clients |
n/a |
Information on complaint handling |
Description of the procedures to handle complaints from clients adopted by the applicant, including the timeframe within which a decision on the complaint will be notified to potential complainants, as provided in the Commission Delegated Regulation (EU) 2022/2117 (1) |
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17 |
Confirmation of whether the applicant intends to provide payment services itself or through a third party, under Directive (EU) 2015/2366 of the European Parliament and of the Council (2), or through an arrangement in accordance with Article 10(5) of Regulation (EU) 2020/1503 |
n/a |
Information on payment services |
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18 |
Procedures to verify the completeness, correctness and clarity of the information contained in the key investment information sheet |
n/a |
Procedures on the key investment information sheet |
Description of the relevant procedures adopted by the applicant |
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19 |
Procedures in relation to investment limits for non-sophisticated investors referred to in Article 21(7) of Regulation (EU) 2020/1503 |
n/a |
Procedures on investment limits for non-sophisticated investors |
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(1) Commission Delegated Regulation (EU) 2022/2117 of 13 July 2022 supplementing Regulation (EU) 2020/1503 of the European Parliament and of the Council with regard to regulatory technical standards specifying the requirements, standard formats and procedures for complaint handling (see page 42 of this Official Journal)..
(2) 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).