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Information for applicants for authorisations – Regulatory Sandbox

General

Legal entities that intend to provide crowdfunding services are required to submit an application for the granting of an authorisation pursuant to Article 12 (1) of the Regulation on European crowdfunding service providers for business (ECSPR). Since as of 31.12.2021 the EU’s relevant delegated legal act is not yet applicable, the content of the application for authorisation is based on Article 12 (2) ECSPR. In light of the technical complexity and newness of ECSP platforms, the FMA recommends submitting an application for admission to the Regulatory Sandbox.

In the sandbox applicants for authorisation receive detailed information about the authorisation procedure as well as assistance in drawing up an application for authorisation under the ECSPR.

The reporting for platform operators is based on Article 16 ECSPR and in detail on the templates in an Implementing Technical Standard, that is not yet applicable (see Annex IX of the Final Report about the Delegated Act). As soon as this legal act is applicable, the FMA will update parts of this website, and make the form available in German.

Reporting is conducted on an annual basis at the end of February in arrears for the preceding financial year. The initial reporting submission for the 2022 financial year will, provided that the authorisation was already granted in 2022, therefore be due on 28.02.2023. Until the relevant legal act applies, applicants for authorisation will receive further information about the structure of reporting in the course of the authorisation procedure.

Under Article 18 ECSPR the national supervisory authority in the country of incorporation (in Austria: the FMA) is to be informed in advance, in the case that an authorised crowdfunding service wishes to perform its services in accordance with the ECSPR in other Member States. Fees under the FMA Regulation on Fees for Financial Market Supervision (FMA-GebV; Verordnung der Finanzmarktaufsichtsbehörde über die Gebühren der Finanzmarktaufsicht) apply for this notification.

Do crowd investors all need to bear anything in mind under supervisory law? As a rule there is no obligation for authorisation for crowd investors, apart from in one important exception: in the case of a credit intermediation platform that is not authorised under the ECSPR, or where the threshold of EUR 5 million in the ECSPR is exceeded, then the users, provided they are acting on a commercial basis, are conducting the activity of lending business pursuant to Article 1 para. 1 no. 3 BWG (investors) or deposit-taking business pursuant to Article 1 para. 1 no. 1 BWG (project owners). Caution: Operating on a commercial basis is already deemed to exist, if there is the intention to take deposits on a recurring basis. The intention of realisation of profits is not a requirement with regard to the issues of commercial operation.
Unauthorised business may lead to high administrative penalties. There is a separate division at the FMA for investigating this. It checks cases on an ad hoc basis about whether a potential obligation to hold an authorisation exists and initiates proceedings. Information about how the proceeding is conducted can be found under Combatting unauthorised business.