Commission Delegated Regulation (EU) 2022/2116 of 13 July 2022 supplementing Regulation (EU) 2020/1503 of the European Parliament and of the Council with regard to regulatory technical standards specifying the measures and procedures for crowdfunding service providers’ business continuity plan (Text with EEA relevance)

• CELEX: Delegated Regulation (EU) 2022/2116
• Articles: 6

Article 1 Definitions

For the purpose of this Regulation, the following definitions apply:

(a)

‘critical services’ means operational and business services whose defect or default in their performance would materially impair the continuing compliance of a crowdfunding service provider with Regulation (EU) 2020/1503, or its financial performance, or the soundness or the continuity of its crowdfunding services and activities, notably vis-à-vis its clients;

(b)

‘failure’ means any insolvency or pre-insolvency proceeding applicable under relevant national law or any significant business interruption;

(c)

‘significant business interruption’ means a significant defect or default that materially impairs the performance of critical services.

Article 2 Minimum content of the business continuity plan

1.   Crowdfunding service providers shall develop a detailed business continuity plan addressing the risks associated with their failure (‘the business continuity plan’).

2.   The business continuity plan shall include:

(a)

measures and procedures to ensure the continuity of the provision of critical services related to existing investments;

(b)

measures and procedures to ensure the sound administration of agreements between the crowdfunding service provider and its clients and the sound administration of critical business data.

Article 3 Continuity of the provision of critical services

1.   The business continuity plan shall ensure that critical services, including those outsourced to third parties, continue to be performed despite the failure of the crowdfunding service provider or the third party to which critical services have been outsourced.

2.   The measures contained in the business continuity plan shall be adapted to the business model of the crowdfunding service provider and shall include arrangements ensuring the continuity of critical services through the outsourcing of some or all of such critical services to a third-party entity.

3.   The business continuity plan shall include provisions for:

(a)

notification of the client about the occurrence of an event of failure;

(b)

the clients’ access to information relating to their investments;

(c)

where applicable, the continued servicing of outstanding loans;

(d)

where applicable, the continuation of payment services as referred to in Article 10 of Regulation (EU) 2020/1503, including the arrangements referred to in paragraph 5 of that Article;

(e)

where applicable, the handover of asset safekeeping arrangements as referred to in Article 10 of Regulation (EU) 2020/1503.

Article 4 Sound administration of agreements

1.   The business continuity plan shall, taking into account the nature, scale and complexity of the crowdfunding service provider as well as its business model, set out detailed measures to be taken to ensure the sound administration of agreements between the crowdfunding service provider and its clients.

2.   The steps referred to in paragraph 1 shall be applied to:

(a)

agreements between the crowdfunding service provider and its clients, including information that is of critical importance for the sound administration of agreements;

(b)

results from the entry knowledge test referred to in Article 21 of Regulation (EU) 2020/1503;

(c)

other critical business data.

3.   The steps referred in paragraph 1 shall consist in the following:

(a)

the storage in a safe place of agreements referred to in paragraph 2, point (a), where the original is only available in paper form;

(b)

relevant back-up of the documents and information referred to in paragraph 2.

4.   Information and agreements enabling to trace payments made by investors and project owners shall be considered as critical business data for the purposesof paragraph 2, point (c).

Article 5 Procedures

1.   The procedures referred to in Article 2(2), points (a) and (b), shall be adapted to the business model of the crowdfunding service provider and shallinclude:

(a)

a compilation of a list of contact details of the persons or department in charge in case of failure of the crowdfunding service provider;

(b)

the identification of the three most likely scenarios of failure and the description of measures to be taken to mitigate their impact on the continuity of critical services;

(c)

provisions regarding access by staff of the crowdfunding service provider to the workspace and company network;

(d)

provisions regarding access to client information and, where relevant, client assets;

(e)

an identification of operational and financial risks as well as measures to reduce their occurrence;

(f)

an identification of critical business systems and contingency measures to ensure their continuity;

(g)

an identification of critical business relationships, including outsourced functions;

(h)

procedures to ensure the continuity of communication between the crowdfunding service provider, its clients, business partners, employees and competent authorities.

Article 6 Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .