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) in conjunction with the accompanying Regulatory Technical Standard (RTS). The application form as well as the other declarations required for the granting of an authorisation for providing crowdfunding services can be found below (in German only).
Antragsformular Zulassungswerber (Format: docx, Size: 107,2 KB, Language: German) Vorzulegende Angaben gem DelVO 2022/2012 (Format: docx, Size: 65,5 KB, Language: German) Erklärung über wirtschaftliche Verhältnisse (Format: docx, Size: 82,5 KB, Language: German) Fragebogen Geschäftsleitung (Format: docx, Size: 88,4 KB, Language: German)
The reporting for platform operators is based on Article 16 ECSPR and in detail on the templates in an Implementing Technical Standard, (see Commission Implementing Regulation (EU) 2022/2120). Reporting to the FMA is conducted on annually at the end of February for the preceding financial year. The FMA forwards reports to the ESMA in an anonymised format within one month of receiving them The initial reporting submission for the 2023 financial year will, provided that the authorisation was already granted in 2023, therefore be due on 29.02.2024. Authorised crowdfunding service providers will receive further information about the structure of reporting directly from the FMA.
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 provider 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.
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.