On 29 September 2022, Law 18/2022, of 28 September, on the creation and growth of companies, was published in the Official State Gazette (BOE).Its entry into force with regard to the legal regime applicable to crowdfunding platforms will take place from 10 November 2022.
These crowdfunding platforms are companies whose activity consists of putting in contact, in a professional manner and through websites or other electronic means, a plurality of natural or legal persons who offer financing with other natural or legal persons who request it on their own behalf in order to allocate it to a specific project.
Crowdfunding platforms have been regulated in Spain since 2015 in Title V of Law 5/2015, of 27 April, on the promotion of business financing.
With the aim of harmonising the different European legislations in this area, on 7 October 2020, Regulation (EU) 2020/1503 of the European Parliament and of the Council on European providers of crowdfunding services for companies and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937 was approved.
In order to allow crowdfunding platforms subject to the national legal regime to adapt to Regulation (EU) 2020/1503, a transitional period of up to 10 November 2022 – which coincides with the entry into force of the new legal regime for crowdfunding platforms provided for in Law 18/2022 – was provided for therein. During this transitional period, Member States were allowed to provide for simplified authorisation procedures for entities which, at the time of entry into force of the Regulation, were authorised under national law to provide crowdfunding services, provided that the providers of crowdfunding services comply with the requirements set out in the Regulation.
In order to allow platforms authorised in Spain to provide their services freely throughout the European Union, Law 18/2022 adapts Spanish legislation to the legal regime established at European level by the aforementioned Regulation (EU) 2020/1503. To this end, Title V of Law 5/2015, of 27 April, on the promotion of business financing, is repealed with effect from 10 November 2022, and a new Title V is introduced in the aforementioned Law 5/2015.
Regarding the new regime envisaged for crowdfunding platforms, the following should be highlighted:
- The clarification to consider shares in limited liability companies as eligible securities for the development of the activities of crowdfunding platforms and investment services companies provided for in Regulation (EU) 2020/1503.
- It allows crowdfunding platforms to create and group investors in (a) a limited liability company, the corporate purpose and sole activity of which consists of holding the shares of the investee company or providing loans to that company, (b) in an entity subject to the supervision of the Comisión Nacional del Mercado de Valores, the Bank of Spain or the Directorate General of Insurance and Pension Funds, or (c) in other forms commonly used for these purposes in other Member States of the European Union.
- In order to provide them with legal certainty and clarity, the legal regime applicable to the so-called non-harmonised platforms is regulated, which are those entities that provide participatory financing services in Spain regulated by Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020, but which are not subject to said Regulation because they fall under the exceptions provided for in Article 1.2.a) or c) thereof, such as those that only intermediate participatory financing offers whose amount is greater than Euro 5,000,000.