Today ESMA published a Q&A, aiming to clarify the status of investment-based crowdfunding platforms which are outside the scope of MiFID and, therefore, not automatically subject to rules designed to combat money laundering and terrorist financing under AMLD III.
Investment-based crowdfunding platforms can have a different regulatory status. Some are within the scope of MiFID, others fall into the exemption provided by art. 3. If they are outside MiFID’s scope, what measures are in place to detect and mitigate potential use for terrorist financing and money laundering? A relevant question, as many platforms are currently operating outside the scope.
ESMA has now clarified that, if platforms are providing payment services, as defined in the Payment Services Directive (PSD), they are subject to AMLD III even if they fall within one of the exemptions to the PSD. This brings certain additional platforms within the scope of AML and counter-terrorism measures, and subjects them to, for example, applying due diligence checks.
For the remaining platforms, ESMA points to national law. Art. 4(1) of AMLD III requires MSs to extend some or all of the AMLD III provisions to other professions and categories of undertakings than those explicitly listed in the Directive, which are likely to be used for money laundering or terrorist financing purposes. So, even if a platform falls outside the scope of MiFID and PSD, there may be national law that can subject platforms to AML and anti-terrorist financing rules.