On 2 March 2026 the European Securities and Markets Authority (ESMA) has published a new Q&A clarifying the use of fiduciary (nominee) structures by Crowdfunding Service Providers (CSPs) in relation to transferable securities and admitted instruments for crowdfunding purposes. The guidance addresses a key operational question for the market: whether and under what conditions CSPs may employ nominee structures as part of their platform operations.
ESMA’s response underscores the importance of regulatory compliance, investor protection, and transparency, while confirming that such structures are not explicitly prohibited, provided they meet strict ECSPR requirements and receive prior approval from National Competent Authorities (NCAs). This clarification is set to impact both CSPs and project owners, offering much-needed legal certainty in a rapidly evolving sector.
Regulatory and practical implications for market participants
1. Legal Framework and Permissibility ESMA confirms that the ECSPR does not explicitly prohibit the use of nominee structures in crowdfunding, provided such services are part of the “operation of the crowdfunding platform” as defined in Article 1(1) of the ECSPR. However, the use of nominee structures must be fully disclosed to and approved by the relevant National Competent Authority (NCA).
2. Regulatory Requirements
- Prior Notification and Approval: CSPs must inform their NCA of their intention to use a nominee structure, either at the time of authorisation or before implementation. The notification must include a detailed description of the nominee structure, the nominee agreement, and the arrangements for ownership, voting, exit rights, costs, and compliance with national laws.
- Direct Investment Principle: The ECSPR requires that investors’ decisions to finance a crowdfunding project must be direct and voluntary. Nominee structures may only be used after an investor has made an explicit investment decision regarding a specific project. Any arrangement that diverts investor funds from the intended project is unlikely to comply with Article 2(1)(a)(ii) of the ECSPR.
3. Custody and Authorisation
- If the nominee structure involves the holding in custody of transferable securities or admitted instruments for crowdfunding purposes, the nominee entity must be authorised under Directive 2013/36/EU or 2014/65/EU, as per Article 10(3) of the ECSPR.
- NCAs will assess on a case-by-case basis whether the nominee structure involves custody, considering factors such as asset holding, record-keeping, and segregation of investor assets.
4. Investor Information and Transparency
- Pre-Contractual Disclosure: CSPs must ensure that investors are fully informed about the use of nominee structures, including the key features, costs, risks, and implications for ownership and voting rights, in accordance with Article 19(1) of the ECSPR.
- Key Investment Information Sheet (KIIS): The KIIS must clearly disclose the use of nominee structures, including:
- The purpose and functioning of the nominee agreement;
- How investor rights are exercised and protected;
- Any limitations or special processes;
- Whether the nominee agreement is mandatory or optional;
- All associated costs.
5. Compliance and Supervision CSPs are responsible for ensuring that both their own use of nominee structures and those used by project owners on their platforms comply with the ECSPR and national law. NCAs will supervise and assess compliance on a case-by-case basis.
Conclusion While nominee structures are not prohibited under the ECSPR, their use is subject to strict regulatory oversight, transparency, and investor protection requirements. CSPs must engage proactively with their NCAs and ensure full compliance with the ECSPR’s provisions on direct investment, custody, and investor information.
For the official assessment, please refer to the full ESMA Q&A.
Compliance Gaps, Convergence, and the Path Forward for ECSPR Platforms
The ECSPR market is still young. While the regulation has succeeded in creating a harmonized framework for crowdfunding across the EU, the reality on the ground is more likely to show gaps in compliance. How many platforms have yet to fully align their practices with the strict requirements for prior NCA approval, transparent disclosure, and investor protection as outlined in ESMA’s latest Q&A is unclear.
Of course, this pattern is not unique to crowdfunding. Experience from other financial sectors demonstrates that the early phases of regulatory implementation are often characterized by uneven compliance, as firms adapt to new rules and supervisors refine their supervisory approaches. However, history also shows that, once regulators establish a common understanding of key risks, enforcement tends to intensify. ESMA’s strategy is clear: to promote supervisory convergence and develop a more consistent, risk-based approach to enforcement across the EU.
For crowdfunding platforms, the message is unequivocal: proactive engagement with NCAs, rigorous adherence to disclosure and custody rules, and transparent communication with investors are now essential. The path forward requires platforms to treat compliance not as a box-ticking exercise, but as a strategic priority—ensuring that their use of nominee structures is fully aligned with both the letter and the spirit of ECSPR.
In summary, while the current compliance landscape may still appear fragmented, the direction of travel is unambiguous. ESMA and NCAs are moving toward a more integrated, enforcement-focused approach. Only when regulatory convergence and enforcement have established deeper harmonization can we expect the market to develop stronger, more resilient foundations.
