Crowdfunding activities under obligation to obtain permit from Polish FSA
As of July 29, 2022, operating a crowdfunding platform requires a permit from the Financial Supervision Commission and is subject to its supervision. Operating without the required permit will be punishable by a fine of up to PLN 5 million.
Social crowdfunding, an alternative way of raising capital for start-ups and small and medium-sized enterprises, is developing quite dynamically in the domestic as well as the EU market. The European Union, recognizing the growing scale of crowdfunding, introduced Regulation (EU) 2020/1503 of the European Parliament and of the Council of October 7, 2020 on European crowdfunding service providers for business ventures (ECSP). As of November 10, 2021, it is directly applicable in EU member states and is the main EU-wide act that comprehensively regulates the subject of social funding of business projects and enables its cross-border operation.
Crowdfunding in Poland
Until now, the operation of crowdfunding platforms (investment crowdfunding or loan crowdfunding) was, in principle, carried out under the freedom of economic activity – i.e. there was no obligation to obtain a permit from the competent national authorities. The provisions of the ECSP Regulation changed the legal regime in such a way that this activity became a regulated activity, requiring a license and subject to supervision. In Poland, the licensing process and supervision of platforms has been carried out by the Financial Supervision Authority (FSA) since the end of July 2022.
The granting of a permit is subject to a fee of no more than the equivalent of €4,500. What’s more, running a crowdfunding business is additionally connected with the obligation to pay annual fees to cover the costs of supervision by the FSA.
The licensing process
The process of obtaining a license may resemble, for example, an application for a national payment institution license. It is therefore quite complex in terms of the documentation to be submitted to the FSA.
Along with the application one must submit, inter alia:
- a program of operation specifying the types of crowdfunding services, including where and how crowdfunding offers are made available,
- a description of the management principles and internal control mechanisms, including the risk management procedure and accounting procedure,
- description of systems, resources and procedures for control and protection of data processing systems,
- description of operational risks of the potential crowdfunding provider,
- description of prudential protection measures,
- description of the business continuity plan,
- identification of individuals responsible for managing the potential crowdfunding provider,
- description of outsourcing policies,
- description of procedures for handling customer complaints,
- confirmation of whether the potential crowdfunding provider intends to provide payment services itself or through a third party,
- a description of the procedures used by the potential crowdfunding provider to verify the completeness, accuracy and clarity of the information contained in the key investment information sheet,
- a description of the procedures used by the potential crowdfunding provider with regard to investment limits for inexperienced investors.
According to the ECSP regulation, crowdfunding platforms may continue to provide crowdfunding services until November 10, 2022, or until approval is obtained, whichever comes first.
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Should you have any questions or doubts, we encourage you to contact our Law Firm. Inquiries can be directed to: [email protected]