CROWDFUNDING – DEMOCRATIZATION OF INVESTMENT IS COMING, 11 February 2022

The crowdfunding services sector is one of the most dynamically developing areas of the financial market globally, including Poland. The interest in this form of financing is growing year by year, causing the results of successive years to be a multiple of the results of the previous years. The size of the global crowdfunding market is estimated at around USD 12.27 billion (forecast for 2027 – USD 25.8 billion). When analyzing the number of crowdfunding platforms in relation to population, in comparison to many European Union countries, it can be stated that the Polish market in this sector is far from being saturated.

The popularity of crowdfunding is due, among other things, to the fact that the dynamics of this phenomenon fit into the broader dynamics of disruptive processes of economic reorganization, which can be called “Uberization”. In the case of crowdfunding, we are dealing with the “Uberization of investing” – in crowdfunding, an ICT system (platform) is created that connects demand with supply bypassing traditional intermediary institutions. Although this is not a completely correct formulation, because the operator of the platform (according to the new regulations in force in this area) is also an institution (and a regulated institution) and is also responsible for certain duties and tasks related to, for example, verification of fundraiser and fundraising, we are undoubtedly dealing with the phenomenon of the emergence of a model that replaces traditional intermediary institutions and brings supply (the investor) and demand (the startup) closer together, similarly to the groundbreaking, in a sense, Uber application.

Crowdfunding (social funding), or strictly speaking its form called equity crowdfunding, is a form of financing of various types of projects (particularly well suited to financing of innovative technological startups) by a large number of investors who pay individually often not very high amounts in exchange for shares in the financed companies. Apart from fulfilling the role of an investor, people making payments create a community around the financed project, which in the environment of social media (and not only) supports the financed company, believing in its success and contributing to its realization.

One of the reasons for the rapid growth of the number of equity crowdfunding projects is that the crowdfunding investment structure itself directly addresses the needs of both sides of the investment process – typical crowdfunding investors don’t have many investment alternatives (and they certainly don’t have them in terms of the rate of return available in crowdfunding), and in turn, those seeking funding don’t have many readily available alternative funding sources provided on favorable terms.

The shortened distance between the investor and the company provided by the crowdfunding formula encourages both parties to cooperate.

Crowdfunding investing is available to everyone – in this investment scheme, there is no problem with the barrier of entry through too high so-called investment ticket – it is possible to invest as little as PLN 500. Crowdfunding makes the world of investing in companies accessible to individuals, breaking the previous monopoly of venture capital funds and laying the foundations for a new phenomenon which can be described as the democratization of investing.

Functioning in the web environment is extremely important for the crowdfunding. The phenomenon of migration of economic processes to the web is a constant trend, it meets the needs of both sides of the investment process, and is one of the reasons for the success of crowdfunding. The success of crowdfunding, caused by its functioning in the web, overlaps and create synergies with the social character of this phenomenon. Startups themselves create their products (to a greater or lesser extent) online, crowdfunding platforms operate online, and investors,  companies and platforms are active in the social media. Crowdfunding platforms can be also often classified as fintech startups themselves, their creators come from startup and innovation environments, they are part of the same innovation ecosystem, which contributes to better understanding of the needs of companies seeking financing and easier communication between fundraiser and the crowdfunding platform.

After years of functioning in a kind of regulatory vacuum, the crowdfunding sector has lived to see regulation in the EU legislative system. On 7 October 2020, 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 was adopted. Although the Regulation entered into force on 10 November 2021, work is still underway in Poland on a draft of the relevant law implementing it into the national legal system. On 7 February 2022. Ministry of Finance, Funds and Regional Policy forwarded a draft law on crowdfunding for business ventures to the Committee for European Affairs, which means that in the near future it can be expected that the law will be enacted, which will enable practical implementation of the provisions of the Regulation.

One of the important solutions introduced by the Regulation is the introduction of a relatively high fundraising limit (up to EUR 5m, according to the Polish draft act, initially EUR 2.5m) and the introduction of a single European crowdfunding licence, and it is worth noting that the regulation applies to both investment (investing in exchange for shares) and debt (granting loans) crowdfunding. According to the draft law, equity crowdfunding will be available only to joint-stock companies or simple joint-stock companies (which is very important due to the absolutely dominant in startup world model of the limited liability company, which does not enjoy the benefits of access to equity crowdfunding).

The fundamentally important role of crowdfunding in funding and developing innovative technology startups should not be overlooked. Traditionally, crowdfunding platforms have been a constant and important part of the innovation ecosystem in developed economies, and as such they significantly contribute to the development of tech startups. Due to the growing role of innovation, there is a growing role of startups in the Polish economy, which will be one of the reasons for the dynamic development of crowdfunding platforms.

A very important (equally to equity crowdfunding) area of crowdfunding is loan crowdfunding. The development of this sector may facilitate companies’ access to debt financing in various areas, including, for example, debt financing for the construction projects, which may be particularly important in view of the deepening difficulties in accessing such loan financing. This area – as particularly important to the real estate development community – will be presented separately.

We will follow up on further legislation in this area and share relevant news as it becomes available.

Miller Canfield Law Office provides comprehensive legal services to startups, investors and crowdfunding platforms – we encourage you to contact us if you find the above interesting or if you need legal advice.

FOR MORE INFORMATION, PLEASE CONTACT THE AUTHOR

Andrzej Chełchowski, PhD
Partner, Attorney at law
T: +48 22 447 43 00
E: chelchowski@millercanfield.com

Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.