ECSP licence for crowdfunding: why Dutch rules still apply

The Dutch crowdfunding market is evolving rapidly, with business-to-business platforms consistently raising over one billion euros annually for SMEs. This growth is accompanied by the European Crowdfunding Service Providers Regulation (ECSP Regulation), which has been directly applicable in all EU Member States since 10 November 2021. It is the first harmonised European supervisory framework for crowdfunding and aims to promote cross-border service provision and ensure investor protection.

For platform operators, the applicable regime may seem straightforward: an ECSP licence settles the matter. In practice, the situation is far more complex. Whether an activity falls within the ECSP Regulation’s scope, and which national obligations continue to apply alongside it, creates a persistent grey area. This poses substantial risks for platforms that underestimate it.

The first hurdle: does the activity even qualify as crowdfunding under the Regulation itself?
Article 2 of the ECSP Regulation defines key terms such as “crowdfunding service”, “crowdfunding platform” and “loan”. Classifying a platform’s activities against these definitions is the decisive first step: if the activities meet them, the European regime applies; if not, the platform is governed exclusively by the Dutch Financial Supervision Act (Wft). The Regulation applies only to crowdfunding services for business project owners, capped at €5,000,000 per project owner over twelve months. Offers exceeding this threshold must be assessed under the Wft, including the prospectus requirement under Article 5:2 Wft. Consumer crowdfunding remains subject exclusively to national law.

The second hurdle: what type of crowdfunding is it exactly?
Even within the Regulation’s scope, classification is not automatic. Loan-based crowdfunding falls under the Wft because lenders provide loans with repayment obligations; equity-based crowdfunding generally qualifies as the provision of investment services, requiring authorisation pursuant to Article 2:96 Wft. In practice, hybrid structures blur these boundaries. A frequently underestimated concern is the prohibition on raising repayable funds under Article 3:5 in conjunction with Article 1:1 Wft: platforms that temporarily manage investment funds fall under this provision (or potentially under the AIF framework) unless payment is made within five days or an exemption applies.

Why is this grey area so persistent?
The crux is that the ECSP Regulation only partially replaces the Wft. Under the primacy of EU law, the Regulation supersedes national legislation insofar as it regulates the same matter, but the Wft remains applicable elsewhere. In particular, Article 2:66 Wft (licensing exemption), Article 2:96 Wft (investment firm licence) and Article 3:5 Wft (repayable funds prohibition) remain relevant for licensing, whilst Article 3:17 Wft (integrity) and the prospectus requirement under Article 5:2 Wft continue to apply for disclosure. These additional obligations are most frequently overlooked in practice.

Why a licence alone is not enough
Platforms with an ECSP licence often assume they have met all regulatory requirements. Practice paints a different picture. A Dutch SME issuing bonds worth €3,500,000 via an ECSP-licensed platform, for instance, must still be assessed against three separate Wft provisions alongside the ECSP licence. A review of case files confirms this is a structural pattern: in loan-based files, the repayable funds prohibition was not addressed; in equity-based files, the investment firm licence was not assessed. Such gaps arise because advice focuses exclusively on the ECSP Regulation without assessing continuing Wft obligations.

The risk is real. Non-compliance exposes platforms to enforcement action by the AFM. As platforms facilitate increasingly large and complex financing structures, the risk of overlooking the overlap between European and national regulation grows accordingly.

A brief look across the border: the European passport
The ECSP Regulation does offer a significant advantage for cross-border operations: once authorised by the AFM, a platform is entered in ESMA’s public register and granted a European passport, enabling service provision across Member States without separate authorisation. However, this does not exempt platforms from additional national requirements. A platform that fails to meet all applicable obligations risks enforcement measures. Loss of its licence means it may no longer offer crowdfunding services within the EU, with potentially devastating consequences for companies investing in platform development or international expansion.

Practice calls for a structured approach
Given this multi-layered interplay, platforms should assess their classification systematically: first, whether the activity falls within the ECSP Regulation’s scope; second, which licensing requirements apply; and finally, which disclosure obligations apply. For platforms, investors and entrepreneurs alike, the message is clear: a valid ECSP licence is only part of the picture. A careful legal assessment of the specific activities, financing form and offering scale (including any continuing national obligations) is essential to avoid surprises later on.