Executive Summary
- Start with the Colombian operating company. The European Crowdfunding Service Providers Regulation (ECSPR) requires the crowdfunding provider to be established in the EU; it imposes no equivalent general establishment requirement on the project owner. A foreign project owner still needs an eligible instrument, satisfactory due diligence and a lawful offer. Platform acceptance remains a separate commercial decision. (Regulation (EU) 2020/1503, arts 2(1)(h), 3(1) and 5.)
- The Colombian statutory history changes the analysis. Constitutional Court judgment C-038/25 struck down the 2023 amendment that would have allowed SAS securities onto the public market under implementing conditions. The operative restriction concerns registration in the national securities register and exchange trading. An exclusively foreign, non-exchange offer needs a separate analysis under the foreign-offer rule. (Law 1258/2008, art. 4; C-038/25, decision; Decree 2555/2010, art. 6.12.1.1.1.)
- Calling the investment ordinary equity does not establish ECSPR eligibility. The share class must satisfy the transferable-security test or an applicable national admitted-instrument route. A long transfer ban, discretionary consent requirement or ineffective transfer can defeat the proposed design. (ECSPR, art. 2(1)(m)–(n) and (2); Directive 2014/65/EU, art. 4(1)(44); Law 1258/2008, arts 13–15.)
- The ECSPR ceiling remains €5 million over 12 months for the same project owner. Count securities offered through relevant campaigns even where subscriptions fell short, alongside crowdfunding loans actually raised and the other public offers specified by the Regulation. A €2 million campaign can exceed that ceiling when earlier offers are included. (ECSPR, art. 1(2)(c); ESMA, Q&A 2437, 12 February 2025.)
- Colombian corporate approval, share ownership and foreign-investment registration are separate tasks. Sending money before capitalisation can create reportable external debt. A platform payment record alone cannot establish the promised shareholder rights or complete the Colombian investment record. (Commercial Code, arts 384 and 406; Banco de la República, Circular DCIP-83, ch. 7, para. 7.2.1.1.)
- The project owner prepares the key investment information sheet and remains responsible for its information. The provider must apply adequate procedures to verify completeness, correctness and clarity, operate the investor protections and address defects during the offer. Outsourcing drafting or translation does not remove these duties. (ECSPR, arts 21–23; ESMA, Q&As 822 and 830.)
- An EU parent proposed as project owner needs an evidenced business and financing role. A vehicle inserted solely to raise money can engage the separate special purpose vehicle (SPV) rules, and a new incorporation cannot erase the economic identity of the project owner. Investors must understand which company they own and how funds reach Colombia. (ECSPR, arts 2(1)(q) and 3(6); ESMA, Q&As 2132 and 2502.)
- Resolve restrictions and prior-offer history before launch. If a prepared campaign proves ineligible, amend the underlying structure lawfully, reduce or reschedule the offer where permitted, or use a separately compliant financing route. An attractive campaign document cannot cure defective shares or expand a provider’s authorisation.
The operating company can be the project owner
The proposed transaction is a primary share issue. Investors pay subscription money for equity in the company that will use the proceeds to develop its software business. The provider brings investors and the business together through its platform.
ECSPR defines a project owner as a natural or legal person seeking funding through a crowdfunding platform. Article 3(1) places the EU establishment and authorisation requirements on the provider. Reading that requirement into the project-owner definition would exclude foreign companies without a basis in the provision. The company’s commercial project also differs from the consumer borrowing excluded by article 1(2)(a). (ECSPR, arts 1(2)(a), 2(1)(a), (h) and (l), and 3(1).)
For cross-border equity crowdfunding, the authorised service combines placing eligible instruments without a firm commitment with receiving and transmitting investors’ orders. A provider permitted only to facilitate loans cannot use that permission for a share campaign. Before selecting a platform, the founders should establish the contracting provider’s identity, equity-service permission and notifications for each targeted Member State through the official register and its home authority. A group affiliate’s authorisation does not establish the permissions of the contracting entity. (ECSPR, arts 2(1)(a)(ii), 12, 14 and 18; ESMA, Q&A 2052, 19 December 2023.)
The provider must obtain evidence that the owner is not established in an excluded jurisdiction. ECSPR refers separately to the EU policy on non-cooperative jurisdictions and the EU list of high-risk third countries for anti-money-laundering purposes. Colombia appears in neither the Council’s October 2026 Annex I tax list nor the operative anti-money-laundering list. That removes these country-level exclusions for an owner established in Colombia; it does not clear any actual shareholder or transaction. Individual sanctions designations require a separate party-specific check. (ECSPR, art. 5(2)(b); Council conclusions C/2026/5413, Annex I; Delegated Regulation (EU) 2016/1675, Annex, as amended by Delegated Regulations (EU) 2026/46 and 2026/83.)
The provider’s project-owner checks extend beyond incorporation documents. The European Securities and Markets Authority (ESMA), in its published interpretation, calls for relevant criminal-record evidence for a legal-person owner, its direct and indirect holders of at least 20% of capital or voting rights, and each member of its management body, including de facto directors. Those checks concern the offences identified in article 5. They do not replace the wider identification, ownership and source-of-funds work required by the payment and custody arrangements. (ECSPR, art. 5(2)(a); ESMA, Q&A 2747, 5 January 2026.)
The strongest objection to a direct offer is therefore more specific than foreign incorporation. The provider may be unable to support the company’s share instrument, establish its ownership chain, service investors’ rights or satisfy its own risk policy. ECSPR creates a possible route for a non-EU company, without requiring a provider to onboard it. The first commercial exercise should test that complete proposition with providers whose permissions cover equity.
The direct route requires an exclusively foreign offer
The 2023 legislative change cannot supply the company’s current authority to conduct the campaign. Article 261 of Law 2294/2023 amended SAS article 4 to contemplate registration of SAS securities in the Registro Nacional de Valores y Emisores, or RNVE, and exchange trading under government conditions. On 5 February 2025, the Constitutional Court declared article 261 unconstitutional for breaching the unity-of-subject requirement governing the National Development Plan. The judgment did not approve a substitute offering route. (Corte Constitucional, C-038/25, paras 83–84 and 119, and decision.)
Article 4 still prevents SAS shares from registration in the RNVE or exchange trading. The financial-regulation unit’s February 2026 technical paper expressly describes the original provision as continuing in force after the judgment. Legislative Decree 1416 of 17 September 2026 creates a limited temporary disaster-related debt route; it does not authorise this equity campaign. The Court’s decision concerned the 2023 amendment, without deciding an exclusively foreign ECSPR placement. (Law 1258/2008, art. 4; URF, Financiación de Mipymes a través del mercado de capitales, February 2026, section 2.4, pp. 21–22; Legislative Decree 1416/2026, art. 4.)
Decree 2555 provides a distinct rule for securities issued exclusively for foreign securities markets. Article 6.12.1.1.1 subjects those offers to applicable foreign rules while preserving Colombian tax, exchange and foreign-investment requirements. That provision must be read alongside the SAS statute. A subordinate foreign-offer rule cannot cancel a statutory prohibition on RNVE registration or exchange trading. (Decree 2555/2010, art. 6.12.1.1.1; Law 1258/2008, art. 4.)
The proposed direct route should therefore use a foreign primary placement whose actual operations require neither prohibited act. An ECSPR platform arranges an offer; its existence does not itself establish a stock-exchange listing. The offer geography, subscription process and any later trading functionality determine whether that distinction survives. The corporate and distribution analysis must identify the legal basis for issuing the shares and establish why this particular campaign falls within the exclusively foreign rule.
The distribution plan matters because a Colombian public component changes the problem. Colombian rules define a public offer by communication to indeterminate persons or at least 100 identified persons, subject to specified exceptions. Counting eventual subscribers alone misses the rule. The separate regime for simultaneous domestic and foreign offers requires authorisation for the domestic component and imposes Colombian exchange-listing requirements for shares. Those conditions are incompatible with simply treating the same SAS campaign as an unrestricted offer in both markets. (Decree 2555/2010, arts 6.1.1.1.1 and 6.13.1.1.1–2; Decree 767/2016, art. 1.)
Colombia also has a separate domestic crowdfunding regime. Qualifying issues through its authorised providers fall outside the public-offer classification and RNVE registration. Book 41 expressly excludes Colombian residents’ activity on foreign-domiciled crowdfunding platforms. ECSPR authorisation alone therefore gives an EU provider no entitlement to that domestic exception or its special payment procedure. The foreign-only campaign must establish its own route. (Decree 2555/2010, arts 2.41.1.1.1, 2.41.1.1.3–5 and 2.41.5.1.1–2.)
For this case, the issuer and provider should agree EU target countries, exclude Colombian solicitation from the campaign, control acceptance and retain the distribution record. A website disclaimer alone cannot change contradictory advertising or sales conduct. Existing fundraising communications must be included in that review, since an earlier domestic offer can raise a separate compliance issue.
The strongest adverse argument draws on the Court’s investor-protection reasoning. SAS flexibility was designed alongside limits on access to public savings; a mass retail campaign may conflict with that structure if it depends on a prohibited market mechanism. The direct route fails if its operation requires RNVE registration, exchange trading or a domestic public offer that the issuer cannot lawfully complete. It remains a reasoned option where the foreign-only rule and the actual placement arrangements fit together. (C-038/25, paras 93–103.)
Transferability depends on the actual share terms
The EU instrument test is separate from the company’s power to issue shares. ECSPR covers transferable securities as defined in the Markets in Financial Instruments Directive (MiFID II), alongside a second category called admitted instruments for crowdfunding purposes. Transferable securities include classes of shares negotiable on the capital market. Actual stock-exchange admission is not an express element of that definition. Shares can satisfy the legal test while remaining difficult to sell. (ECSPR, art. 2(1)(m)–(n); Directive 2014/65/EU, art. 4(1)(44)(a).)
The company’s ordinary shares must be assessed as a class with defined rights and an effective transfer mechanism. The bylaws, certificates and shareholder agreements may contain a ten-year transfer prohibition, an assembly-consent requirement, a preference on secondary sales or limits tied to investor identity. Colombian SAS law permits specified restrictions and makes transfers contrary to the relevant bylaw restrictions ineffective by operation of law. A description of the shares as transferable cannot displace those terms. (Law 1258/2008, arts 13–15.)
Restrictions differ in their effect. A workable transfer notice or a time-limited preference process requires different analysis from an absolute ban or an unrestricted power to refuse every buyer. The provider needs a reasoned classification addressing how the actual class can be transferred, who can buy it and whether the procedures permit legally effective transfers. Disclosure of an obstacle does not cure an instrument that fails the legal test.
The admitted-instrument category does not provide a universal fallback for private-company shares. It concerns limited-liability-company shares without restrictions that effectively prevent transfer, including restrictions on public offer or advertising. The competent authority that authorised the provider may permit qualifying shares under this route. The relevant national position therefore matters when the company cannot establish transferable-security status. (ECSPR, art. 2(1)(n) and (2)–(3).)
France supplies a focused national application. Its financial legislation recognises equivalent instruments and financial-investment rights issued under foreign law. That supports examining Colombian shares on their substance, without deeming every foreign share negotiable. France’s entry in ESMA’s July 2026 admitted-instrument table identifies shares in cooperatives constituted as sociétés anonymes. That entry supplies no general permission for Colombian SAS shares. A provider authorised in France should therefore assess the proposed ordinary shares through the transferable-security route, unless it establishes another applicable basis. (Code monétaire et financier, art. L211-41; ESMA35-42-1305, updated 27 July 2026, table 1, France.)
France is an illustration of the national issue, not a required incorporation destination. A provider authorised elsewhere must use the position applicable to its own authorisation. The commercial decision should follow the instrument assessment: retain the existing class if eligible, amend it lawfully if a specific restriction prevents eligibility, or abandon that class for the campaign.
Earlier offers consume the €5 million ceiling
The ECSPR ceiling is an aggregate scope limit for the project owner over 12 months. It is not a separate allowance for each platform, project page or share class. Article 1(2)(c) excludes offers exceeding €5 million after the prescribed aggregation. ESMA explains the distinction between the value of securities offered and the amount of crowdfunding loans raised. A securities campaign does not count only its successful subscriptions. (ECSPR, art. 1(2)(c); ESMA, Q&A 2437, 12 February 2025.)
Assume an illustrative new campaign offering €2 million of shares. Suppose the same owner offered €2.1 million of eligible securities through an earlier EU crowdfunding campaign during the relevant preceding 12 months, although investors subscribed for only €300,000. Suppose it also raised €700,000 through crowdfunding loans in that period. The calculation is €2 million plus €2.1 million plus €700,000, giving €4.8 million. Replacing the earlier offer amount with its receipts would understate the aggregate by €1.8 million.
The owner must also identify other public securities offers falling within the small-offer exemptions referenced in article 1(2)(c)(ii). Ordinary bank borrowing and every private capital contribution are not automatically part of that statutory sum. The fundraising register should record each offer’s issuer, amount offered, amount subscribed, dates, instrument, distribution countries, provider and legal exemption. Classification determines the count; management’s label for the round does not.
A public securities offer through an authorised ECSPR provider is exempt from prospectus publication if it does not exceed ECSPR’s aggregate threshold. (Prospectus Regulation, art. 1(4)(k).)
The Prospectus Regulation now provides a different threshold system. For offers not subject to notification under the Prospectus Regulation’s article 25, amendments applicable from 5 June 2026 provide an exemption below €12 million. A Member State may apply the lower €5 million threshold and require the permitted national document. This exemption does not itself supply a prospectus passport. Those changes did not increase ECSPR’s €5 million ceiling. A larger offer can be exempt from an EU prospectus yet remain outside a provider’s crowdfunding authorisation. (Regulation (EU) 2017/1129, art. 3(2)–(2d); Regulation (EU) 2024/2809, arts 1(3) and 4(3).)
ECSPR retains references to the earlier prospectus-exemption structure. For this campaign, the issuer should include relevant national small public offers in the proposed aggregate. If their treatment determines eligibility, the issuer should resolve the calculation with the provider and, where necessary, its home competent authority before setting the launch maximum. (ECSPR, art. 1(2)(c)(ii); Prospectus Regulation, art. 3(2) and (2a).)
If the aggregate is too high, the owner can reduce the proposed maximum or wait until identified earlier offers fall outside the rolling period. It must reassess any offer still open during that period. An alternative securities offer to qualified investors can use the relevant prospectus exemption, with separately applicable distribution and intermediary permissions. The ECSPR licence alone cannot deliver that alternative. The company’s Colombian issue and transfer conditions continue to apply. (Prospectus Regulation, art. 1(4)(a); Directive 2014/65/EU, arts 5–6.)
Corporate approvals must support the promised rights
The company should settle the corporate issue before exposing final subscription terms to investors. Its capital records must show enough authorised shares for the proposed maximum. The competent corporate body must approve the issue and subscription regulation, including the share class, price, payment terms and offer process. The Colombian subscription contract and the platform’s acceptance procedure must describe the same legal transaction. (Law 1258/2008, arts 9, 17, 22 and 45; Commercial Code, arts 384–388.)
Existing shareholders’ preference rights on a new issue require express treatment. Those rights differ from a preference over a later sale by an existing shareholder. The company should document a valid exclusion, waiver, assignment or exercise process as the applicable rules and bylaws require. Supersociedades’ July 2026 Circular Básica Jurídica specifies the subscription regulation and preference requirements. It requires approval of an ordinary-share placement for companies under Supersociedades’ control; the company’s actual supervisory status determines whether that additional step applies. (Commercial Code, arts 388 and 407; Supersociedades, Circular Externa 100-000020 of 2 July 2026, ch. I, paras 1.11–1.18.)
Removing a restriction can require more than a majority vote. SAS article 41 requires holders of all subscribed shares to approve the inclusion or modification of the clauses covered by articles 13 and 14. Supersociedades’ July 2026 interpretation confirms that removal of an article 13 restriction also requires that unanimity. Agreement among the founders present at a meeting may therefore be insufficient. If a required holder refuses, the prepared instrument cannot be treated as cured. (Law 1258/2008, art. 41; Supersociedades, Oficio 220-310335 of 2 July 2026, pp. 2–3.)
The rights package should distinguish legal entitlements from negotiated protections. It should identify voting rights, dividend participation, information access, dilution from future issues, any preference or anti-dilution protection, and the conditions for a sale or liquidation. Ordinary equity promises no fixed return or automatic redemption. Reserved matters and founder undertakings need documents that bind the relevant company and shareholders, rather than a campaign description alone. (Commercial Code, art. 379; Law 1258/2008, arts 10, 20 and 24.)
A deposited SAS shareholder agreement can bind the company under article 24 within its statutory conditions, including the maximum term of ten years per agreed period. Its voting and transfer provisions must comply with mandatory rules and be coordinated with any required bylaw amendments. The subscription documents should also identify the dispute forum and preserve the remedies applicable to the corporate relationship. Colombian law provides specified court and Supersociedades routes; a platform complaints procedure does not replace them. (Law 1258/2008, arts 24 and 40–41; Law 1564/2012, art. 24(5).)
The ownership record must match the investment sold
The simplest rights chain for this case is direct ownership of the Colombian shares, if the provider can administer it. The issuer should identify each subscriber, record the issued shares and deliver evidence of the investor’s holding. Subsequent transfers need the Colombian share-book entry to take effect against the company and third parties. The platform’s database should reconcile with that register. A payment confirmation or account balance does not perform the corporate entry. (Commercial Code, arts 195, 384 and 406.)
A nominee can reduce the number of names on the company’s register, but changes how investors exercise their rights. The documents must identify who holds legal title, who instructs votes, who receives distributions, how notices reach investors and who can enforce rights against the company. They must also address replacement of the nominee, conflicts, fees, transfer instructions and the consequences of its insolvency. The investor-facing description should state whether the investor is a registered shareholder or holds rights through an intermediary.
ESMA’s nominee guidance accepts no blanket exemption. The provider must describe the arrangement to its authorising authority before implementation, including ownership, voting, exit, costs and applicable national law. Investors must decide which project to fund, and their money must acquire the relevant project-owner or permitted SPV instruments. An intermediary’s separate promise to pay returns cannot be assumed equivalent to purchasing those instruments. (ESMA, Q&A 2601, 4 July 2025; ECSPR, art. 2(1)(a)(ii).)
Where the arrangement includes custody within article 10(3), the custodian must hold the required banking or MiFID authorisation. Payment services also need the appropriate permission or an authorised payment provider. ECSPR authorisation does not itself provide either permission. A Colombian commercial trust has an express SAS statutory route, but that does not make a foreign nominee automatically equivalent to it. (ECSPR, art. 10(3)–(5); Law 1258/2008, art. 12.)
An ECSPR bulletin board can advertise buying or selling interest. It cannot internally match interests in a way that produces contracts through a multilateral execution system. An advertised sale still needs a willing buyer, an eligible transfer and the necessary records. The company should disclose the prospect of a long holding period and a total loss, without promising liquidity from the mere existence of a platform. (ECSPR, arts 19(2), 23(6)(c) and 25.)
Closing must satisfy Colombian investment and exchange rules
Foreign investment in an ordinary software company is generally permitted under Colombia’s investment regime. The investor’s status turns on residence for exchange purposes, rather than nationality alone. A non-resident’s lawful subscription for capital in a Colombian resident company whose securities are not registered in the RNVE falls within the direct-investment definition. That classification does not decide whether the proposed offer or share class is lawful. (Decree 1068/2015, arts 2.17.1.2, 2.17.2.2.1.2(a)(i) and 2.17.2.2.2.1–2.)
The closing instructions must align subscription, capitalisation, payment and registration. Foreign currency contributed for the investment must follow the authorised channelling route. Supplying the prescribed investment data for that transaction registers a currency investment automatically; lawful investments without a currency transfer use a separate procedure. Registration does not approve the underlying offer. The company, payment provider and exchange intermediary should agree whose investment each remittance represents, the gross subscription and charges, the receiving entity and the supporting records. A pooled platform transfer does not answer those questions by itself. (Banco de la República, Resolución Externa 1/2018, arts 41(3), 42 and 54; Circular DCIP-83, ch. 7, paras 7.1, 7.2.1.1–2 and 7.7.)
Foreign investors must also appoint the representative in Colombia required by the investment rules. The appointment should identify authority to supply information, receive notices and maintain records, with a replacement process if the service ends. (Decree 1068/2015, art. 2.17.2.2.2.3.)
A non-resident remittance to the SAS that constitutes an advance for future capitalisation is external debt under the current exchange circular. The applicable external-debt report precedes disbursement. The parties should hold investor money with the authorised payment arrangements until the agreed equity closing can occur, or implement the external-debt procedure for a genuine advance. The separate Colombian authorised-crowdfunding procedure cannot be assumed merely because a provider holds ECSPR permission. (Circular DCIP-83, ch. 7, para. 7.2.1.1(d) and (g), referring to ch. 5; Decree 2555/2010, art. 2.41.1.1.5.)
The operational record must also support returns of capital, distributions, later transfers and any holding-company reorganisation. Colombia’s 2026 changes permit investment substitutions and cancellations to be registered at any time under the relevant procedure. That change does not remove the underlying registration requirement or tax obligations arising from a change of owner. Reliance on an old six-month exchange-registration deadline would misstate the current procedure. (Decree 1044/2026, art. 1; Circular DCIP-83, ch. 7, para. 7.2.1.4(a)–(b).)
The SAS must keep its beneficial-ownership reporting consistent with the new capital structure. Under the Registro Único de Beneficiarios Finales (RUB) rules, the SAS must identify natural persons with direct or indirect, individual or joint interests of at least 5% in capital or voting rights, or entitlement to at least 5% of assets, returns or profits. The SAS must also identify persons exercising control by other means. If those criteria identify nobody, the company reports its natural-person legal representative unless there is a natural person with higher management or direction authority, in which case that person must be reported. Nominee chains must be traced to the relevant beneficial owners. These tests differ from ECSPR’s 20% project-owner criminal-record check. (DIAN, Resolution 227/2025, arts 1.4.1.4, 1.4.1.6 and 1.4.1.17–18.)
Tax affects the mechanics even where the campaign raises equity. The company should allocate responsibility for dividend withholding, remittance, exchange conversion and payment charges before distributions occur. The applicable tax position and exchange route determine the net amount received. (Estatuto Tributario, art. 245(2); Banco de la República, Resolución Externa 1/2018, art. 55.)
A contribution of the founders’ Colombian shares to a foreign parent requires a separate tax assessment. Article 319-2 treats contributions within its scope as disposals for tax purposes and applies transfer-pricing rules. The shareholders’ residence, tax bases and valuation determine the resulting liability. No tax saving should be assumed in the restructuring decision. (Estatuto Tributario, art. 319-2.)
The offer document and marketing need separate controls
The project owner prepares a key investment information sheet, or KIIS, for each offer. The KIIS must be available as soon as the provider publishes the offer. The provider supplies it to prospective investors and applies procedures to verify completeness, correctness and clarity before publication and throughout the campaign. The owner remains responsible for the information it supplies. Contractual drafting support or indemnities can allocate work and financial exposure without removing these statutory duties. (ECSPR, art. 23(2), (8)–(11); Delegated Regulation (EU) 2022/2119, art. 1(2); ESMA, Q&A 822, 19 May 2022.)
For this company, the KIIS should explain the software business and the project that will use the money, the current and post-offer ownership, the share rights, the minimum and maximum raise, allocation of excess subscriptions, costs, financial information and the treatment of a failed campaign. Its risk section should address the actual business, dilution, transfer restrictions, Colombian enforcement and currency exposure. Any nominee or parent structure needs an intelligible account of ownership, payments and investor recourse. (ECSPR, Annex I, Parts A–F and H; Delegated Regulation (EU) 2022/2119, arts 1–6 and Annex.)
The KIIS is a distinct document with a maximum of six printed A4 sides. The admitted-instrument exception permits excess Part F investor-rights information to be annexed when that section exceeds one printed A4 side. The KIIS carries prescribed warnings about loss, illiquidity and the absence of the stated deposit-guarantee and investor-compensation protections. It is not subject to prior regulatory approval, although a home authority may require advance notification. Claims that the offer has regulatory approval would contradict the document’s prescribed explanation. (ECSPR, art. 23(6)–(7) and (14).)
If France is a target market, the KIIS needs French under the current notified language position. French marketing communications must also meet the applicable language and presentation rules. France’s Autorité des marchés financiers (AMF) requires a balanced account of benefits and risks and consistency with the KIIS; a prominent benefit claim is not balanced merely by placing its countervailing risk elsewhere. A provider authorised in another Member State still needs the relevant French distribution and language arrangements when marketing there. (ECSPR, arts 18, 23(3) and 27; ESMA35-42-1305, table 2; AMF Position DOC-2023-05, sections 1 and 2.)
Translation responsibility needs an express workflow. ESMA attributes translation errors in principle to the provider; the owner shares responsibility where it prepared the translation made available by the provider. The parties should identify the original version, appoint a competent translator, reconcile legal rights across versions and control later amendments. A translation must not silently soften a transfer restriction or turn projected distributions into promised returns. (ESMA, Q&A 830, 16 December 2022.)
Campaign pages, advertisements, founder presentations and social posts should use the same approved facts and terms. ECSPR requires marketing to be identifiable, fair, clear, non-misleading and consistent with the KIIS. Its requirements also cover marketing outsourced by the provider. Licentium’s marketing compliance review describes the review of claims and financial promotions relevant to this preparation; the issuer and provider retain their respective legal responsibilities. (ECSPR, arts 19(1) and 27.)
Retail safeguards affect the subscription timetable
The provider must assess prospective non-sophisticated investors’ knowledge and experience before giving full access to invest. It also requires a simulation of ability to bear losses, calculated by reference to 10% of net worth under the prescribed method. That simulation is not a statutory investment cap. Insufficient knowledge triggers the required warning and acknowledgement process rather than an invented automatic prohibition. (ECSPR, art. 21(1)–(6); Delegated Regulation (EU) 2022/2114.)
Before a non-sophisticated investor accepts an individual offer with a proposed investment above the higher of €1,000 or 5% of that investor’s net worth, the provider must ensure that the investor receives a further risk warning, gives express consent and demonstrates understanding of the investment and its risks. The higher-of test matters: treating €1,000 as a universal maximum would misstate the rule. Sophisticated status follows either qualifying professional-client status or the assessment and approval route in ECSPR Annex II; a high subscription amount alone does not establish it. (ECSPR, arts 2(1)(j) and 21(7), and Annex II.)
Non-sophisticated investors receive four calendar days to revoke their investment offer or expression of interest without giving a reason or incurring a penalty. The provider records the timing and explains the revocation procedure. Closing documents must accommodate that right, the minimum funding condition and refunds. The issuer should not treat a pending commitment as irrevocable capital or release its proceeds contrary to the agreed closing process. (ECSPR, art. 22(2)–(6).)
The campaign needs an acceptance ledger that distinguishes interest, a revocable investment offer, an effective subscription and completed payment. The corporate share record and Colombian investment information should follow the legally effective transaction. Removing those distinctions to accelerate fundraising would create inconsistent investor and capital records.
A holding company must change the business arrangement
An EU parent can serve a commercial purpose where the group needs central financing, group-level board decisions, future investment or European operations. That purpose must appear in the actual ownership, decision-making and funding arrangements. The existing Colombian company remains the first candidate for project owner because it conducts the business that needs the money. A parent’s registration certificate alone cannot replace that relationship.
ESMA’s project-owner guidance examines economic and business reality, including the entity’s role in developing the project and its legal and economic ties to it. Artificial layers must not circumvent the Regulation. A parent that directs and finances the group may have a different position from a newly inserted company whose only task is receiving crowdfunding proceeds and passing them on. The provider must identify the actual owner and apply the offer-limit and disclosure rules to that conclusion. (ESMA, Q&A 2502, 3 April 2025; ECSPR, art. 2(1)(h) and (l).)
The SPV rules require a separate assessment. ESMA treats a financing entity interposed between investors and the project as an SPV where the specified purpose, separation and transferred-interest conditions are met. ECSPR permits only one illiquid or indivisible asset through that SPV, looking through structures wholly or partly owned or controlled by it. The investment decision remains exclusively with investors. ESMA also expects the arrangement to enable exposure to an asset that could otherwise not, or not easily, be offered to them. Describing the entity as a holding company does not remove those conditions. (ECSPR, arts 2(1)(q) and 3(6), recital 22; ESMA, Q&As 793 and 796, 25 February 2021, and 2132, answer of 26 May 2023.)
The restructuring also changes what investors acquire. Parent shareholders have rights against the parent; the parent owns the Colombian subsidiary. Operating cash must reach the parent through lawful distributions, repayment or other documented transactions before it can fund the parent’s obligations or distributions. The KIIS must show the downstream funding, intercompany terms, tax and currency costs, group debt and limits on recourse. An investor should be able to distinguish a share in the parent from a direct share in the software company. (ECSPR, art. 23 and Annex I, Parts A, C and E.)
Acquiring the SAS shares still requires compliance with their transfer restrictions and records. The transfer or contribution can trigger Colombian tax and investment reporting. Any future parent share issue must also use a legal form and share class permitted under the chosen Member State’s law. Licentium’s guide to choosing where to incorporate provides background for that commercial location decision; incorporation should follow a defined operating and financing purpose.
If Colombian-resident founders exchange their SAS shares for foreign-parent shares, the transaction needs separate analysis of inward investment in the SAS and their outward investment. Each applicable non-currency investment has its own registration procedure. The parent’s actual management also matters: decisions made in Colombia can engage Colombia’s effective-management tax rule. (Circular DCIP-83, ch. 7, paras 7.2.1.2 and 7.3.2; Estatuto Tributario, art. 12-1.)
A Colombian corporate transformation deserves consideration before adding a foreign parent solely to solve a share-form problem. Law 1258 permits transformation with the approval of all subscribed shares, subject to the resulting form’s requirements. A suitable sociedad anónima can change the corporate constraints while retaining the operating business as issuer. The resulting shares, offer and provider service still need their own EU assessment. (Law 1258/2008, art. 31; Commercial Code, arts 167, 171 and 374–376.)
A late discovery can require a different campaign
Suppose the provider discovers a previously overlooked transfer ban after the campaign materials are prepared. The company must identify the legal amendment and consent needed, obtain that consent and align the share terms, subscription documents and KIIS before launch. If the required unanimity cannot be obtained, the offer cannot proceed on the advertised share terms. A nominee or parent arrangement must be tested afresh; neither automatically removes the underlying restriction.
Now suppose the €4.8 million calculation omitted another €400,000 ECSPR securities offer by the same project owner within the relevant period. The aggregate becomes €5.2 million, outside ECSPR. Before publication, the proposed campaign maximum could be reduced from €2 million to €1.8 million to reach €5 million, assuming all other inputs remain unchanged. A €2 million advertised maximum cannot be preserved merely because the company expects to receive less. Lowering an already published maximum must not be assumed to erase the amount previously offered. Changing platforms or inserting a financing company also cannot justify disregarding the actual project owner. (ECSPR, art. 1(2)(c); ESMA, Q&As 2437 and 2502.)
Discovery after publication engages the provider’s continuing duties. A KIIS omission, error or inaccuracy that could materially affect expected return must be notified to the owner and corrected promptly. If correction is not made promptly, the provider suspends the offer for no more than 30 calendar days, informs affected investors of the irregularity and measures, and explains their withdrawal option. If the defect remains after 30 days, the offer is cancelled. That correction procedure supplies no permission to continue an offer outside ECSPR’s scope. (ECSPR, art. 23(8) and (11)–(12).)
The funding plan determines the next decision. If a smaller round still finances the disclosed project, the owner and provider can redesign the offer, disclosures and subscriptions on a legally effective basis. If the project requires the full €2 million, a later campaign or a separately compliant financing route may be necessary. A failed transferability test may instead require a different corporate form or an ordinary negotiated equity investment outside the proposed crowdfunding service. Each alternative must preserve lawful Colombian issuance and the applicable investor and intermediary rules.
For the direct campaign, the sequence should be corporate and instrument assessment, provider and distribution selection, lawful approvals, ownership and payment arrangements, then final disclosure and launch. Before a revised launch, the company must recompute the aggregate at the new offer date and obtain the corporate consents required by its revised terms. The provider must reassess owner identification, instrument eligibility and disclosures if the funded company or investors’ rights change. Existing subscriptions and funds must be handled according to their legal status and applicable withdrawal rights. (ECSPR, arts 1(2)(c), 2, 22–23; Law 1258/2008, art. 41.)