The application of Regulation 2020/1503 from November 10, 2021 means that Poland, like other EU countries, will have provisions that regulate online crowdfunding in an almost comprehensive manner. What form will the provisions of crowdfunding services take in Poland? More about it in the article of trainee attorney-at-law, Associate Michał Słuszniak.
On November 10, 2021 the EU Regulation ECSP began to apply. RECPS envisages the creation of a new regulated activity consisting in the provision of crowdfunding services. According to the definition, crowdfunding service regulated by RECPS covers loan and equity crowdfunding up to EUR 5 million which are to be calculated over a period of 12 months. The regulation does not regulate the form of donation (charity) or prize-based crowdfunding. The provision of the crowdfunding service is to take place only through the online platform, and the possibility of performing this activity will be reserved only to entities that obtain the authorisation.
Currently, in Poland, a draft act on crowdfunding for business ventures is being processed in order to harmonize domestic law with the content of RECPS. According to this draft, it is planned to limit the possibility of using crowdfunding services with regard to shares in limited liability companies, and at this stage (this issue may change) it provides for a two-year transition period (from 10 November, 2021) when the admissibility of such action will remain possible.
At the same time, in the period from the entry into force of the provisions of the draft act until November 9, 2023, the maximum threshold of crowdfunding in Poland will amount to EUR 2.5 million, and after that date the threshold specified in art. 1 clause 2 let. c RECPS, i.e. EUR 5 million. It should be mentioned that the proposed act provides a regime for the protection of information related to the provision of crowdfunding services, covering it with professional secrecy, the scope of which is to be equivalent to other professional secrecies known from the financial market in Poland, e.g. banking secrecy.
According to art. 49 RECPS after 10 November, 2021 entities providing crowdfunding platforms on the basis of the previous national regulations may continue to operate on the terms set out therein until 10 November, 2021 or until they obtain an authorisation, whichever is sooner. It is important, however, that until the draft regulations enter into force, the Polish Financial Supervision Authority is not a supervisory authority within the meaning of RECPS, therefore the possibility of applying for a permit will open after the draft act enters into force. The moment of entry into force of the draft act is not known yet.
Crowdfunding is a constantly growing industry that offers a promising prospect as an alternative form of obtaining financing for commercial endeavors. On the other hand, taking into account the current lack of regulations in the Polish system regulating this matter, as well as the limitations related to the risk of operating in this area, the new regulations will allow for wider activity in the field of running crowdfunding platforms and faster development of this industry in our country. Importantly, providers of crowdfunding services from other Member States may conduct activities in Poland (and vice versa) with prior notification this intention in competent authority (art. 18 RECPS).
 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