Joanna Diane Caytas
J.D. Candidate, Columbia Law School, 2017
Modern venture capital, at first invested by way of private equity, is a Swedish-American creation that started around WWI by ultra-high net worth families such as the Wallenbergs, Whitneys, Rockefellers, and Warburgs. Europe has always lagged significantly behind countries such as the United States and Israel with regards to transparent public markets. It has also never mustered commercial funding sources and government as well as legislative support for large-scale innovation finance, not to mention developed a comparable size and quality of market for risk capital. A recent EU initiative aims to change this by leveraging another American creation, crowdfunding, a phenomenon expected to outgrow total venture capital funding globally in 2016. Dubbed “venture capital for the 99%,” crowdfunding may also hold significant promise for overcoming the well-known and much-deplored gender gap in technology finance that has long been held hostage by overwhelming male dominance and widely recognized minority shareholder oppression. In general terms, crowdfunding unlocks the power of social media and the “wisdom of crowds” for raising innovation finance from non-accredited investors and with reduced formalities and costs. Little of this would be worth reporting if the initiative to provide startup companies with access to non-bank, non-traditional, non-institutional, non-accredited, and non-governmental financing did not come from one of the least likely sources of entrepreneurial financial innovation—bureaucrats of the European Union. This points to market failure, on one hand, but also bodes ill for the success of the initiative.
One may be forgiven for conjecturing that the EU’s wake-up call came at least in part from one rare piece of bipartisan legislation passed during the Obama administration’s first term: the Jumpstart Our Business Startups (JOBS) Act. Title III of the JOBS Act specifically regulates crowdfunding, even though SEC Regulations on Title III are still extant for a variety of reasons. While there is still legitimate debate across the much more robust American marketplace over the assertion that “venture capital will not be crowded out by crowdfunding” (a method sometimes labeled “IPO lite” and which may also include SPACs), the venture capital club is certainly getting significantly less exclusive as world-wide crowdfunding will almost certainly overtake venture capital by the end of 2016. Crowdfunding’s victory lap appears unstoppable for several reasons—except that it may be choked off in some jurisdictions but not globally and driven offshore by regulatory overkill or by delays that interested parties, such as hedge funds, are pursuing as a dilatory strategy to ward off largely, though not necessarily, unwelcome competition.
In any event, the EU’s approach differs significantly from the U.S. regulatory model, to say nothing of the fact that it is still in an early, indeed nascent state, and that the numbers and volumes of actual cases are still small. EU Commissioner for Financial Services, Financial Stability and Capital Markets Union Jonathan Hill (UK) noted in September 2015 an excessive dependence of European small- and medium-sized businesses on traditional bank financing, which became virulent not least because of the credit crunch that followed in the wake of the global financial crisis of 2007. At this year’s Ambrosetti Forum, Baron Hill also elaborated on the increasing need for crowdfunding and prioritization of venture capital—two supplementary sources of funding innovation that European companies continue to obtain in the U.S.—not only because of more favorable valuations, but also due to less regulation and its attendant cost. Hill recognized the need to fund European innovation from within Europe and to avoid regulating too soon so as not to choke off the growth of crowdfunding as a rapidly evolving instrument and potentially gigantic source of financing. It should be noted, though, that Asia has already overtaken Europe in crowdfunding volume: 2014 figures show North America in the lead with $9.46 billion—an annualized increase of 145%—and Asia at $3.4 billion, trailed by Europe with $3.26 billion.
Thus, absent vigorous deregulation, Hill’s well-intentioned and entirely accurate observation may come too late to account for the global competitive difference. Admittedly, and this is also a dilemma the JOBS Act had to straddle, investor protection and incentivizing investment are inherently at least partly contradictory objectives. But in a recent report completed at the direction of the European Commission, an overwhelming array of potentially applicable European pieces of legislation already enacted and in force were enumerated and discussed, leaving one to doubt the sustainability of the regulatory cost of compliance for entrepreneurial startups as well as their incentive to forgo forum shopping outside of Europe. Crowdfunding projects would have to comply with the following non-exhaustive list of major regulatory frameworks:
- Payment Services Directive (Directive 2007/64/EC)
- Prospectus Directive (Directive 2003/71/EC)
- Capital Requirements Directive (Directive 2013/36/EU)
- Consumer Credit Directive (Directive 2008/48/EC)
- Markets in Financial Instruments Directive (MiFID) (Directive 2004/39/EC)
- Undertakings for Collective Investment in Transferable Securities Directive (UCITS) (Directive 2001/107/EC and Directive 2001/108/EC)
- Alternative Investment Fund Managers Directive (AIFMD) (Directive 2011/61/EU)
- European Venture Capital and Social Entrepreneurship Funds (EuVECA) Regulations (Regulation (EU) No. 345/2013)
- European Social Entrepreneurship Funds (EuSEF) Regulations (Regulation (EU) No. 346/2013)
- Directive on Consumer Rights (Directive 2011/83/EC)
- Distance Marketing of Financial Services Directive (Directive 2002/65/EC)
- Anti-Money Laundering Directive (Directive 2005/60/EC)
It must be noted, though, that with the increasingly sophisticated body of rules, the cost associated with regulatory circumvention also rises. Regulatory or compliance burden is the administrative cost imposed on its subjects in terms of money, time and complexity. In addition to European standards, national regulatory frameworks for crowdfunding exist as well, for example in France, Spain, and Italy. Several other countries are evaluating potential legislation. Their envisioned approach varies from very liberal regimes to very restrictive ones. National regulations applicable to date to equity-based crowdfunding differ substantially, and thus constitute a barrier for cross-border operations. Add to this the tax burden immediately envisioned by the European Commission by way of imposing value added tax on crowdfunded proceeds, and it becomes clear that the total cost of operating and funding R&D in a sophisticated society by using the benefits of its infrastructure is highly significant. Still, these benefits are far from exclusive to Europe and thus also highly vulnerable to comparative choice. Deregulation, an agenda embraced by both liberal and conservative think tanks, scholars, and politicians in the U.S. and (less) the EU with particular urgency during 1970–2000, is today a widely ignored imperative for incentivizing entrepreneurship in Europe. Excessive regulation also tends to incentivize regulatory capture, a form of political corruption and government failure equally observed on both sides of the Atlantic. But regulatory capture, by its nature, favors only major players, not decentralized, unorganized grass-roots movements such as crowdfunding, or traditional venture capital of which the EU has admitted to having a serious shortage.
The Startup Europe Initiative, part of the Entrepreneurship 2020 Action Plan, has spawned the Startup Europe Partnership, a platform concerned with technology and innovation finance. It reviewed the obstacles that startups face to access funding from Europe’s capital markets prior to the Capital Markets Union intended to take effect in 2019. In cooperation with DG FISMA and DG CONNECT, it examined the European regulatory and investment landscape. In March 2015, it reported on major developments and trends in startup entrepreneurship. This report produced important data on how to boost institutional and corporate investment in venture capital, develop these markets EU-wide, and also develop private sources of VC funding and exit opportunities.
In 2013, DG CONNECT launched a three-year research project entitled European Innovation Policies for the Digital Shift (EURIPIDIS) that produced similarly predictable and also near-obvious results, speaking of a “mosaic of regulations”: Venture Capital is primarily important for Information and Communication Technology (accounting for 25% of all deals), it is a local affair because VCs physically monitor their investments, taxation impacts investment incentives, and of approximately twenty million companies in the EU and two million startups in 2013, only 1,300–3,200 companies received VC funds.
It is likely that the weight of EU regulation will cut off an agile and growing source of funding for entrepreneurial businesses, resulting in a glacial chilling effect—more migration of innovative schemes to the U.S. and other lower-taxed, less-regulated entrepreneurial environments. The European response to alternative finance is downright classic: while no innovative financial instruments were invented or developed in Europe, its bureaucrats nonetheless stood by to regulate to death whatever appeared to flourish elsewhere if it showed any signs of meeting with so much as proof-of-concept interest in the EU. Had the internet not emerged as a literal force of nature, it, too, might have been regulated to a point of avoiding most of its benefits, no doubt with the best of intentions. This exuberance of red tape, language diversity, diversity in business law and regulation, and lack of risk-taking culture will, inter alia, form part of the ultimate cause of death of the European experiment as it stands. The EU started as a peace project but failed to take into account that, while it may be possible to turn warmongers into a modern-day replica of Laocoön in the molasses of regulation, the same will not be possible with entrepreneurs and innovators. Investors and ideas will simply leave, as they have done in many instances. European investors bear part of the blame: they want to see startups able to generate revenue from the outset, not to first spend years to build up their user numbers, as Amazon, Twitter, or Facebook have done. They prefer manufactured goods that can be sold right away to yield revenue, not engage in fickle, consumer-preference driven markets for services.
The fact that a respectable if globally non-competitive number of startups funded by European venture capital and/or crowdfunding has emerged and prospered despite an already existing and increasing regulatory juggernaut is not evidence for the viability of the European regulatory philosophy, but of the indomitable spirit and determination of some entrepreneurs and some ideas that were adopted early by markets or corporate exits, and which will survive and moderately prosper against all odds. For example, despite the meltdown of Nokia’s erstwhile dominance in the cell phone market, Finnish developers are cornering the market for mobile gaming, and a startup culture emerged in Finland that led to a booming mobile game industry.
The EU is, after all, a jurisdiction in which important members believe that their financial infrastructure can survive a financial transaction tax without most portable matters availing themselves of one of the four fundamental freedoms—the right to mobility of capital and talent as enshrined in Europe’s foundational treaties—increasing the growth of financial centers not similarly burdened.
Much the same is true of the concern of financial market and securities regulators world-wide who have adopted, to a greater or lesser degree, a paternalistic view prioritizing the avoidance of potential fraud or an uneven playing field for non-accredited investors above the need to create and preserve access to pools of risk capital that are small on an individual-scale but vast in the aggregate. One might argue that, the lower a crowdfunded amount raised, especially per capita, the lesser the risk of economic disasters for even small investors, which tips the scale in favor of less need for regulation. Excessive emphasis on the security of an inherently insecure investment is the same approach that has stifled continental European equities markets in general to date, which, despite the size of Europe’s GDP and statistical wealth, have not even vaguely approached the dimension of the U.S. equities markets. But what basically amounts to an epidemiologist’s approach to alternative finance will not advance much-needed innovation, despite ritually repeated proclamations and protestations on the part of the EU bureaucracy of their recognition of a need for it. In fast-moving, winner-take-all industries with immense first-mover advantages, markets are divided up, and dominant technologies established, before cautious, consensus-based deliberative processes can run their course. Willingness to accept these operating conditions—and implicit risks—is one of the reasons for the success of Silicon Valley, but also of Silicon Wadi, and for the continuing drain of talent and ideas that Europe keeps suffering despite what may be the world’s most educated human resource pool.
Featured image source: http://www.nonprofitlawblog.com/assets/Crowdfunding.png
 Over the past five years, U.S. venture capitalists invested $167 billion on innovation, compared to $20 billion by European VCs. Just in 2014, U.S. investment in startups was $50 billion compared to $4 billion in Europe. Matti Huuhtanen, Why Europe Isn’t Creating Any Googles or Facebooks, Bus. Insider (Sept. 22, 2015), http://uk.businessinsider.com/ap-why-europe-isnt-creating-any-googles-or-facebooks-2015-9?r=US&IR=T.
 Israel’s startup boom resulted in the moniker “Silicon Wadi.” Catherine de Fontenay & Erran Carmel, Israel’s Silicon Wadi: The Forces Behind Cluster Formation (Stan. Inst. for Econ. Pol’y Res., Discussion Paper No. 00-40, June 2001), available at http://web.stanford.edu/group/siepr/cgi-bin/siepr/?q=system/files/shared/pubs/papers/pdf/00-40.pdf.
 See generally C. Steven Bradford, Crowdfunding and the Federal Securities Laws, 2012 Colum. Bus. L. Rev. 1 (2012). Arguably the first crowd-funded project in modern times was the plinth of the Statue of Liberty, for which Joseph Pulitzer raised over $100,000 from donations of $1 or less. Joseph Pulitzer, Pulitzer in Depth, Nat’l Park Serv., http://www.nps.gov/stli/learn/historyculture/pulitzer-in-depth.htm (last visited Sept. 27, 2015).
 See also Eugenia Macchiavello, Peer-to-Peer Lending and the Democratization of Credit Markets: Another Financial Regulation Puzzling Regulators, 21 Colum. J. Eur. L. (forthcoming 2015); Paul Belleflamme et al., Crowdfunding: Tapping the Right Crowd, 29.5 J. Bus. Venturing 585 (2014), and Armin Schwienbacher & Benjamin Larralde, Crowdfunding of Entrepreneurial Ventures, in The Oxford Handbook of Entrepreneurial Finance 369–392 (Douglas Cumming, ed., 2012).
 Brannan W. Reaves, Minority Shareholder Oppression in the Venture Capital Industry: What You Can Do to Protect Yourself, 61 Ala. L. Rev. 649, 650 (2010).
 See generally Kevin Lawton & Dan Marom, The Crowdfunding Revolution: How to Raise Venture Capital Using Social Media (2014).
 See William R. Kerr & Ramana Nanda, Financing Innovation (Harv. Bus. Sch., Working Paper No. 15-034, Nov. 5, 2014), available at http://www.hbs.edu/faculty/Publication%20Files/15-034_c08817a4-7eac-4c62-b58b-8632585180b5.pdf. See also Andy Cosh et al., Outside Entrepreneurial Capital, 119 Econ. J. 1494 (2009).
 Startups turn increasingly to non-bank lending: Deloitte recorded a 2014 volume in the EU of 195 deals, an increase of 43% from 136 deals in 2013. According to EY, EU-wide VC investments totaled $10.5 billion in 2014, an increase of 27% from 2013. Arjun Kharpal, EU to Push Crowdfunding, Venture Capital for Business, CNBC (Sept. 5, 2015), http://www.cnbc.com/2015/09/05/eu-to-push-crowdfunding-venture-capital-for-business.html. See also Deloitte Alternative Lender Deal Tracker, Deloitte (Mar. 2014), http://www2.deloitte.com/uk/en/pages/financial-advisory/articles/deloitte-alternative-lender-deal-tracker-march-2015.html; and Ernst & Young, Adapting and Evolving: Global Venture Capital Insights and Trends 2014 (2014), http://www.ey.com/Publication/vwLUAssets/Global_venture_capital_insights_and_trends_2014/$FILE/EY_Global_VC_insights_and_trends_report_2014.pdf.
 See Huuhtanen, supra note 1.
 H.R. 3606 (Apr. 5, 2012), Pub. L. No. 112–106, §§ 301-305, 126 Stat. 306 (2012) (to be codified at 15 U.S.C. §§ 77a-aa, 78a-pp).
 See Benjamin P. Siegel, Title III of the Jobs Act: Using Unsophisticated Wealth to Crowdfund Small Business Capital or Fraudsters Bank Accounts? 41 Hofstra L. Rev. 777, 808 (2013). See also Kobi Kastiel, SEC Proposes Crowdfunding Rules Under JOBS Act, Harv. L. Sch. F. Corp. Governance & Fin. Reg. (Oct. 30, 2013), http://corpgov.law.harvard.edu/2013/10/30/sec-proposes-crowdfunding-rules-under-jobs-act/.
 See, e.g., Dana M. Warren, Venture Capital Investment: Status and Trends, 7 Ohio St. Entrep. Bus. L.J. 1 (2012); Tim Devaney & Tom Stein, Will Crowdfunding Crowd Out Venture Capital?, ReadWrite, May 18, 2012, http://readwrite.com/2012/05/18/will-crowdfunding-crowd-out-venture-capital; Cale G. Weissman, Fred Wilson: Venture Capital as We Know It Will Cease to Exist, Pando Daily, June 17, 2013, https://pando.com/2013/06/17/fred-wilson-venture-capital-as-we-know-it-will-cease-to-exist/; Chance Barnett, Will Crowdfunding for Businesses Succeed or Fail?, Forbes (July 26, 2012), http://www.forbes.com/sites/chancebarnett/2012/07/26/will-crowdfunding-for-businesses-succeed-or-fail/; and Ryan Kantor, Why Venture Capital Will Not Be Crowded Out by Crowdfunding, 2.2 UK L. Student Rev. 5 (July 2014), http://www.uklsa.co.uk/wp-content/uploads/2014/07/UKLSR-Volume-2-Issue-2-Article-1.pdf. See also Joyce M. Rosenberg, Crowdfunding May Be More Bust than Windfall, Cleveland.com (Apr. 24, 2013, 4:30 PM), http://www.cleveland.com/business/index.ssf/2013/04/crowdfunding_may_be_more_bust.html; and Ajay K. Agrawal et al., Some Simple Economics of Crowdfunding (NBER, Working Paper No. 19133, June 2013), http://www.nber.org/papers/w19133.
 Kevin Lawton, Unlocking the Global Trillion-Dollar Crowdfunding Market, VentureBeat, Dec. 24, 2012, http://venturebeat.com/2012/12/24/crowdfunding-market/.
 Crowdfunding dominates seed financing in the UK already, where growth rates increase 40% faster than in the rest of Europe. Alberto Onetti, Towards the EU Capital Markets Union—Venture Capital, Crowdfunding and Startups, SEP Pol’y Rep. (March 2015), at 4–6, available at http://startupeuropepartnership.eu/wp-content/uploads/2015/06/SEP-Policy-Report-SEP-INVESTORS-FORUM-CMU-WORKSHOP.pdf.
 This echoes verbatim Jean Claude Juncker, President, Eur. Comm’n, A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change, Opening Statement in the European Parliament Plenary Session (July 15, 2014), at 8, available at http://ec.europa.eu/priorities/docs/pg_en.pdf. See also the analysis of Masako Ueda, Banks versus Venture Capital: Project Evaluation, Screening, and Expropriation, 59.2 J. Fin. 601 (2004).
 None of the underlying situation is new nor has it changed in a decade and a half. See Laura Botazzi & Marco Da Rin, Venture Capital in Europe and the Financing of Innovative Companies, 34 Econ. Pol’y 231(2001).
 The discrepancy of figures is more stark in traditional venture capital, where Asian investments totaled $22.5 billion in 2014 as compared to Europe’s $4 billion, and amounted to $32 billion by the end of August 2015. See Huuhtanen, supra note 1.
 See David Mashburn, The Anti-Crowd Pleaser: Fixing the Crowdfund Act’s Hidden Risks and Inadequate Remedies, 63 Emory L. J. 127, 140 (2013), available at http://law.emory.edu/elj/_documents/volumes/63/1/comments/mashburn.pdf; William K. Sjostrom, Jr., Relaxing the Ban: It’s Time to Allow General Solicitation and Advertising in Exempt Offerings, 32.1 Fla. St. U. L. Rev. 1, 3 (2004), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=834244; Zachary J. Griffin, Crowdfunding: Fleecing the American Masses, 4.2 Case W. Res. J.L., Tech. & Internet 375 (2013); John S. (Jack) Wroldsen, The Social Network and the Crowdfund Act: Zuckerberg, Saverin, and Venture Capitalists’ Dilution of the Crowd, 15 Vand. J. Ent. & Tech. L. 583, 585 (2013), available at http://www.jetlaw.org/journal-archives/volume-15/volume-15-issue-3/the-social-network-and-the-crowdfund-act-zuckerberg-saverin-and-venture-capitalists%E2%80%99-dilution-of-the-crowd/ (describing crowdfunding as “the practice of many (i.e., crowds of) people investing small amounts of money over the Internet in early-stage businesses in exchange for equity interests that are not registered with the Securities and Exchange Commission.”); Brian Broughman & Jesse M. Fried, Carrots and Sticks: How VCs Induce Entrepreneurial Team to Sell Startups, 98 Cornell L. Rev. 1319 (2013); Alan R. Palmiter, Pricing Disclosure: Crowdfunding’s Curious Conundrum, 7 Ohio St. Entrep. Bus. L.J. 373 (2012); Constance Z. Wagner, Securities Fraud in Cyberspace: Reaching the Outer Limits of the Federal Securities Laws, 80 Neb. L. Rev. 920 (2001).
 Space-Tec Capital Partners, Crowdfunding Innovative Ventures in Europe—The Financial Ecosystem and Regulatory Landscape: Final Report (2015), https://ec.europa.eu/digital-agenda/en/news/crowdfunding-innovative-ventures-europe-financial-ecosystem-and-regulatory-landscape-smart. See also European Comm’n, Crowdfunding: Regulatory Framework in EU Member States and Perspectives for the EU, Digital Agenda for Europe (2014), https://ec.europa.eu/digital-agenda/en/news/crowdfunding-regulatory-framework-eu-member-states-and-perspectives-eu.
 Space-Tec Capital Partners, supra note 19, at 40.
 Id., at 43. The Spanish government appears intent of choking off crowd-funding generally by imposing excessive regulation. See Alex Barrera, As Crowdfunding Grows up Across Europe, the Spanish Government Seems Determined Not to Play Ball, Tech.eu (Apr. 3, 2014), http://tech.eu/features/933/spain-crowdfunding-regulation/.
 Space-Tec Capital Partners, supra note 19, at 44.
 For a comparison of the regulatory frameworks, see Review of Crowdfunding Regulation: Interpretations of existing regulation concerning crowdfunding in Europe, North America and Israel 2014 (Oliver Gajda et al. eds., 2014), available at http://www.eurocrowd.org/files/2014/12/ECN-Review-of-Crowdfunding-Regulation-2014.pdf; Kristof De Buysere et al., A Framework for European Crowdfunding (2012), available at http://www.europecrowdfunding.org/files/2013/06/FRAMEWORK_EU_CROWDFUNDING.pdf; and David Röthler & Karsten Wenzlaff, Crowdfunding Schemes in Europe, EENC Report September 2011, http://www.eenc.info/wp-content/uploads/2012/11/DR%C3%B6thler-KWenzlaff-Crowdfunding-Schemes-in-Europe.pdf.
 Think tanks that have supported deregulation include the Brookings Institution, Hoover Institution, the American Enterprise Institute, and the Cato Institute. Benefits and limits of useful regulation have nonetheless remained controversial. See Massimiliano Caliet al., The Contribution of Services To Development: The Role of Regulation and Trade Liberalization, Overseas Dev. Inst. (Project Briefing No. 17, Dec. 2008), http://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/3484.pdf; and Paul Krugman, Laissez Not Fair, N.Y. Times, Dec. 11, 2001, http://www.nytimes.com/2001/12/11/opinion/laissez-not-fair.html.
 George Joseph Stigler and Milton Friedman at the University of Chicago and Alfred Edward Kahn at Cornell University. See, e.g., Alfred E. Kahn, Deregulation: Looking Backward and Looking Forward, 7 Yale J. on Reg. 325 (1990).
 Businesses have an incentive to control anything that has power over them, including regulatory agencies, media, academia, and popular culture, thus they will seek to capture them as well. This phenomenon is known as “deep capture.” See Jon D. Hanson & David G. Yosifon, The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture, 152. U. Penn. L. Rev. 129 (2003).
 Directorate General Financial Stability, Financial Services and Capital Markets Union.
 Directorate General Communications Networks, Content and Technology.
 Onetti, supra note 14.
 Onetti, supra note 14, at 16–22. See also Robert Wardrop et al., University of Cambridge & EY, Moving MainStream: The European Alternative Finance Benchmarking Report (Feb. 2015), http://www.jbs.cam.ac.uk/fileadmin/user_upload/research/centres/alternative-finance/downloads/2015-uk-alternative-finance-benchmarking-report.pdf.
 Onetti, supra note 14, at 3–10.
 Huuhtanen, supra note 1.
 Treaty on the Functioning of the European Union, Title IV, Dec. 13, 2007, 2008 O.J. (C 115) 47.
 It has been frequently mentioned that the European investment public’s risk aversion may be traced back to post-WWI hyperinflation that started in 1922. Several generations and almost a century later, this argument is folklore at best. A more persuasive explanation would appear to be excessive reliance on the state, not only for risk prevention by way of regulation but also for providing low-cost, extra-judicial remedies for the consumer.