Madrid 17 / 08 / 2021 – 17: 59

The Government will establish a single individual investment limit for each project for retail investors in participatory financing platforms or crowdfunding, which is set as the highest among an amount of 1. 000 euros or 5% of wealth (not including real estate and pension funds).

Thus, it is established in the Draft Law on the Creation and Growth of Companies, in which retail investors are not prevented from investing above the limit, but if they want to do so, they will receive a risk warning and will have to give their express consent to the provider of participatory financing services.

In this way, the Ministry of Economy seeks to introduce a new legal regime for these platforms, whose activity It consists of putting in contact, in a professional way and through web pages or other electronic means, a plurality of natural or legal persons who offer financing with other natural or legal persons who request it in their own name to allocate it to a specific project.

A new category “portfolio management” is also created to allow the crowdfunding service provider to invest funds on behalf of the investor.

Issuance prospectus In addition, the setting of an investment limit per project of five million euros, surpassed up to the limit established in the legislation of each Member State, from which the issuance of a brochure is required, but in this case without being able to have a European passport but only within that Member State of the European Union (EU).

The Community Regulation that regulates participatory financing platforms will be directly applicable in Spain from 10 November 2021.

To allow participatory financing platforms subject until now to their national legal regime to adapt to this Community Regulation in those cases in which it is applicable, the European Regulation itself foresees a transitional period of 24 months so that these platforms have enough time to adapt their business activity to the provisions of the European Regulation.

During this transitional period, Member States may establish special procedures that allow legal persons that have been authorized under national law to provide crowdfunding services included in the scope of the Regulation, provided that crowdfunding service providers meet the requirements established in the Regulation itself. This special procedure is included in the Draft Bill currently being prepared by the Ministry of the Economy.

Intermediation in projects The EU Regulation does not apply to platforms that only mediate financing projects promoted by consumers, nor to those that only mediate participatory financing offers whose amount exceeds 5. 000. 000 euros, although these types of platforms were included in the scope of Law 5 / 2015, of 27 of April, on the promotion of business financing.

It is for this reason that the Government regulates the figure of non-harmonized platforms, so that they do not face a situation of lack of security legal and clarity.

And it is remarkable the precision that is made in the text of the Preliminary Draft to determine the participations in companies of resp Limited liability as values ​​suitable for the development of the activities of participatory financing platforms and investment services companies provided for in Community Regulation.

Create an investor SL Outside of the adaptation to European regulation, it is worth highlighting the modification that allows participatory financing platforms to create and group to investors in a limited liability company, whose corporate purpose and sole activity is to hold the shares of the company in which it is invested, in an entity subject to the supervision of the National Securities Market Commission, or in other Figures that are commonly used for these purposes in other Member States of the European Union.

Although the regulations in force up to now in Spain did not prohibit this possibility, there have been no cases in practice, so the Ministry of Economy considers it convenient to expressly include it in legislation, assimilating the Spanish legal system to that of other neighboring countries, and promoting a measure that may have positive effects on the growth and operation of these platforms.

The future regulation aims to reinforce the unity of the internal market The future Law of Creation and Growth of Companies includes the Sectoral Conference for the Improvement of the Regulation and Business Climate will assume the functions of the Council for the Market Unit, reinforcing the functions of its Secretariat. In addition, the National Markets and Competition Commission (CNMC) may file a contentious-administrative appeal against general provisions or actions of any competent authority that is considered contrary to freedom of establishment or movement.

Reference

1-Business – Wikipedia
2-Business – CNN
3-Business WorkLife- BBC

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