[ESMA35-42-1305 ] ESCPR – Miscellaneous reporting to ESMA

ESMA published an updated version of its document in connection with crowdfunding services and their providers in the EU.
Specifically, the document provides current information on:
1. companies registered in each member state that fall under the provisions of the ECSPR (Article 2);
2. the languages accepted by NCAs with respect to the publication of the KID (Article 23);
3. local regulations per jurisdiction and links thereto regarding the requirements in connection with the marketing of crowdfunding services (Article 28); and
4. the processes (and related websites) NCAs have developed with respect to complaints handling in connections with crowdfunding service providers (Article 38).
As the document contains information reported by NCAs, ESMA does not take responsibility as to the completeness and accuracy of the data.
The following changes were noted:
Table 1: Information received by ESMA pursuant to Article 2(3):
– Denmark
– Finanstilsynet
– Aktieselskaber (A/S)
Table 2: Information received by ESMA pursuant to Article 23(5):
– Denmark
– Finanstilsynet
– Danish and English (if the key investment sheet is provided only to sophisticated investors)
Table 3: Information received by ESMA pursuant to Article 28(2):
– Denmark
– Finanstilsynet Law
– The Danish Financial Business Act
Bekendtgørelse af lov om finansiel virksomhed
(retsinformation.dk)
The Marketing Act
Markedsføringsloven (retsinformation.dk)
– Yes (See below)
Country Summaries:
– Denmark
– The Danish Financial Business Act (Bekendtgørelse af lov om finansiel virksomhed) & The Marketing Act (Markedsføringsloven)
– Denmark has inserted the necessary national implementation regulation of the ECSPR in Section X a, chapter 20a of the Danish Financial Business Act (Act L 2021 1163). The provisions implies that providers of crowdfunding services are under the supervision of the Danish Financial Supervisory Authority. Chapter 21 contains the general rules for the FSA’s supervision, including rules on confidentiality, the FSA’s organization of its supervisory activities and the competence of the FSA’s board of directors.
Also, according to the Danish Financial Business Act section 348(1) the Consumer Ombudsman may institute legal proceedings regarding actions contrary to honest business principles and good practice, cf. section 43(1) and (2), section 48a and sections 53b–53d, including proceedings on prohibitions and orders, compensation, and claims for repayment of illegally demanded amounts. The Consumer Ombudsman may also consider cases concerning breaches of provisions subject to penalty in regulations issued pursuant to section 43(3) of this Act. Sections 24, 25(2), 28(1), 32(1), 33, and 34 of the Marketing Practices Act shall apply correspondingly to legal proceedings the Consumer Ombudsman wishes to institute pursuant to this provision. The Consumer Ombudsman may be appointed as group representative in group actions, cf. Part 23a of the Administration of Justice Act. (2) The Danish FSA may order that matters which are contrary to sections 43, 46a, 46b, 57 and 72 be rectified. In connection with this, the Danish FSA may carry out inspection visits of branch offices of management companies and investment firms.
Section 348a(1) provides, that the Danish FSA shall notify the Consumer Ombudsman if it comes to the attention of the Danish FSA that a client of an undertaking may have suffered a loss as a consequence of the undertaking having breached section 43(1) or provisions issued in pursuance of section 43(2). Notwithstanding Section 354, the Consumer Ombudsman has access to all the information in Danish FSA cases subject to subsection (1).
The Marketing Act (2022-06-15, no. 866) sets the minimum standard for companies‘ market behaviour. The overall purpose of the Act is to ensure that business operations are conducted properly and fairly, taking into account both competitors and other business operators as well as consumers and general societal interests.
Table 4: Information received by ESMA pursuant to Article 38(2):
– Romania
– Romanian Financial Supervisory Authority (ASF)
– Romanian: https://www.asfromania.ro/ro/a/2657/anunt-privind-tratarea-potentialelorcazuri-de-incalcare-a-regulamentului-%28eu%29-2020/1503-de-catre-furnizarii-deservicii-de-finantare-participativa
English: https://www.asfromania.ro/en/a/2657/announcement-regarding-complainthandling-of-the-alleged-infringements-of-regulation-%28eu%29-2020/1503-bycrowdfunding-service-providers