The Alternative Financing Act
In addition to the existing supervisory rules, such as the Capital Market Act (KMG; Kapitalmarktgesetz), a special legal framework has been created for the purpose of easier financing, to thereby simplify access to the capital market. Furthermore the Alternative Financing Act (AltFG; Alternativfinanzierungsgesetz) also defines minimum standards for the operators of crowd funding platforms.
The FMA does not supervise compliance with the provisions of the Alternative Financing Act (AltFG) or a Regulation issued on the basis of that act. Any administrative offence committed is punished by the locally competent local administrative authority. Consequently, any interpretation issues regarding the provisions of the AltFG do not fall within the remit of the FMA.
An information obligation rather than an obligation to publish a prospectus
For a public offering of securities or investments as defined in the AltFG with a total consideration of up to EUR 250,000 (or up to EUR 750,000 in the case of cooperative shares) there is neither an obligation to produce a prospectus nor an information obligation. In the case of a public offering of over EUR 250,000 up to a total consideration of less than EUR 2 million there are only certain information obligations in accordance with the AltFG. The information obligations include the obligation to publish the latest financial statements without delay and to provide an annual information update
In the case of a public offering with a total consideration exceeding EUR 2 million within a twelve month period a prospectus pursuant to Article 2 of the Capital Market Act (KMG; Kapitalmarktgesetz), although the EUR 2 million threshold is to be calculated separately for securities and investments. Up to a threshold of EUR 5 million the obligation to produce a prospectus may be met by drawing up a simplified prospectus in accordance with Annex F of the Appendix to the Capital Market Act (KMG). In the case of securities a full prospectus (as defined in the Regulation (EC) 809/2004) may be drawn up on a voluntary basis pursuant to Article 7 para. 8a KMG. This option applies for securities; such an option for a full prospectus (Schedule C) is not legally stipulated for investments. When calculating the thresholds issuance in accordance with the AltFG are to be considered and the provision set out in Article 3 para. 1 AltFG observed.
If the total consideration exceeds EUR 5 million or where the threshold pursuant to Article 3 para. 1 of the Alternative Financing Act (AltFG; Alternativfinanzierungsgesetz) is exceeded, then the general obligation to produce a prospectus applies.
A detailed overview of the threshold values can be found at the end of this page under “Downloads”.
Individual investment limit
The maximum amount that may be invested by any investor over a twelve-month period must generally not exceed EUR 5,000. This limit does not apply in the case of professional investors as defined in the Alternative Investment Fund Managers Act (AIFMG; Alternatives Investmentfonds Manager-Gesetz) or in the case of legal persons (provided they are not consumers) or if the investor provides the corresponding information on income and/or financial assets.
Information obligations and right to withdraw
This obligation to provide investors with information is met by providing an information document (see “Information document in accordance with the AltFG”) that complies with the terms of the AltFG and the Alternative Financing Information Regulation (AltF-InfoV; Alternativfinanzierungs-Informationsverordnung). The information should be checked for coherence, completeness and comprehensibility by, for example, an auditor, a lawyer, a notary, a management consultant, an asset manager or the responsible audit association in the case of a cooperative.
This check should also involve ensuring that the contractual conditions and information document are consistent with each other. Where information is not made available to a consumer in accordance with the Consumer Protection Act (KSchG; Konsumentenschutzgesetz), the consumer is entitled to withdraw from the offer or contract concerned. The withdrawal right shall lapse upon expiry of a two week period after the day upon which the investor has received the missing information and the investor has been briefed about their withdrawal right.
Operators of an Internet platform are authorised to provide brokerage services between investors and issuers, provided that when acting as an investment broker that they are authorised in accordance with Article 94 no. 75 of the Commercial Code of 1994 (GewO 1994; Gewerbeordnung) or when acting as a broker for securities holds a licence in accordance with Article 3 WAG 2018. Operators of an Internet platform shall not be allowed to simultaneously hold a licence in accordance with the Alternative Investment Fund Managers Act (AIFMG; Alternatives Investmentfonds Manager-Gesetz), the Payment Services Act 2018 (ZaDiG 2018; Zahlungsdienstegesetz), the Insurance Supervision Act 2016 (VAG 2016; Versicherungsaufsichtsgesetz) or the Electronic Money Act 2010 (E-GeldG 2010; E-Geldgesetz).
Alternative investment funds (AIFs) pursuant to the Alternative Investment Fund Managers Act (AIFMG; Alternative Investmentfonds Manager-Gesetz), payment institutions or e-money institutions have no legal basis herein for the operation of an Internet platform, with the respective supervisory laws determining whether and to what extent they shall be allow to operate Internet platforms.
Platform operators as defined in the AltFG also face numerous obligations:
- obligations in relation to prevention of money laundering, particularly identification of investors;
- minimum information obligations, particularly regarding the platform itself and its operator, the selection criteria applied to projects and the fees charged. They are subject to the terms of the GDPR;
- publication of their annual financial statements;
- prohibited from acting on their own platform as an issuer; only under specific circumstances may the platform act in the capacity of an investor;
- obliged to provide information about the recommended diversification of risk and obligation to warn about the risk of a total loss of the invested amount.
If payments are processed over an Internet platform, the Alternative Financing Act (AltFG; Alternativfinanzierungsgesetz) does not contain any special rules, with the terms of the Payment Services Act (ZaDiG; Zahlungsdienstegesetz (ZaDiG) continuing to apply.
Administrative penalties and Enforcement
The enforcement of the Alternative Financing Act ((AltFG; Alternativfinanzierungsgesetz) falls within the competence of the local administrative authorities (district administration or municipal authority) rather than those of the FMA. Consequently, the FMA therefore does not AltFG issuers or platforms per se, but only in instances where these are subject to supervision as provided for under other Federal Acts (particularly in cases where securities are being brokered over the platform pursuant to the Securities Supervision Act 2018 (WAG 2018; Wertpapieraufsichtsgesetz 2018)). The local administrative authorities may impose administrative penalties of up to EUR 30 000.