A Look At Crowdfunding And The New Legal Framework In Belgium

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Mondaq | By Leo Peeters (Peeters Advocaten-Avocats)  | September 4, 2017

Belgium's Act of 18 December 2016 ("The Act") regulating the recognition and definition of crowdfunding created a legal framework in Belgium for what is referred to as crowdfunding and alternative types of business funding.

The importance of crowdfunding

Crowdfunding can be regarded as a collective effort on the part of several investors who combine their investments in order to fund a different individual or organisation requiring funds for specific projects. It is an alternative form of funding which frequently uses an internet platform as a tool.

There are various forms: equity crowdfunding, credit funding or donation funding. The Act defines a crowdfunding platform as any natural or legal person who provides or offers alternative funding services in the territory of Belgium, and which is not a regulated enterprise.

And an "alternative funding service" refers to the sale, via a website or via any other electronic device, of investment instruments issued by issuing operators, start-up funds or funding vehicles in the context of a (none) public offering. And no investment service may be provided in relation to these investment instruments, except:

  • The provision of investment advice
  • The receiving and passing-on of orders.

See: LendIt Europe 2017 (Oct 9-10): Don't Miss Europe's Largest International Lending Fintech Event

The need for a permit from Belgium's Financial Services and Markets Authority

Since 1 February 2017, equity crowdfunding platforms have been obliged to first obtain a permit from the FSMA (Financial Services and Markets Authority). To do this, they must submit a dossier. A number of conditions must be met to obtain the permit:

  • The activity must be conducted by a commercial company with its central management located in Belgium
  • The directors may only be natural persons
  • The directors must hold the required professional qualities, professional integrity and appropriate expertise; They may not have incurred convictions in the sense of Article 20 of the Act of 25 April 2014 governing the status and supervision of credit institutions
  • The actual management must be entrusted to at least two persons
  • A crowdfunding platform must set up an appropriate organisation which is suited to the nature, scale and complexity of its activities, in order to ensure continuity
  • They must also take out a civil liability insurance policy with a minimum cover, which corresponds to specific conditions laid down by the law.

The FSMA must be notified of any changes to the management or conditions. If a platform ceases to satisfy the conditions of the permit, it must be terminated.

Crowdfunding platforms may not receive or keep monies in cash or on an account. The same applies to financial products which belong to their clients.

Nor may they hold debts in respect of their clients, or have proxy or power of attorney for a client’s account.
On its website, the FSMA has a list of the alternative-funding platforms, which may be accessed by the public.

See: Europe's alternative finance market hits $9.1 billion in first quarter

Equity crowdfunding in different EU Member States or by companies in different EU Member States

The FSMA’s approval must also be obtained for extending activities to another country. The FSMA may oppose such project if it deems that it will be detrimental to the platform.

Persons located in the other EU Member States can also conduct crowdfunding, provided they satisfy the following conditions:

  • Are authorised to provide similar services in their Member State
  • Receive a permit from the FSMA beforehand
  • Meet all of the requirements concerning composition, status and operations, as outlined above.

Foreign crowdfunding platforms are included under a special heading in the FSMA’s list.

Persons located outside the EEA who wish to perform crowdfunding activities must satisfy the following conditions:

  • In their state of origin, be subject to a status that permits them to provide similar services
  • Branches which obtain a permit from the FSMA must be registered under a special heading of the FSMA list
  • The central management for the Belgian activities must be located in Belgium
  • If crowdfunding activities are performed by a branch of a crowdfunding platform that is located abroad, only the managers of the Belgian branch must meet the requirements for managers under Belgian legislation.

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The National Crowdfunding Association of Canada (NCFA Canada) is a cross-Canada non-profit actively engaged with both social and investment crowdfunding stakeholders across the country. NCFA Canada provides education, research, leadership, support, and networking opportunities to over 1600+ members and works closely with industry, government, academia, community and eco-system partners and affiliates to create a strong and vibrant crowdfunding industry in Canada. Learn more at www.ncfacanada.org.

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