Articles

Unintended banking licence exception

Unintended banking licence exception

Unintended banking licence exception

01.07.2015 NL law

On 1 January 2015, the group finance companies exemption as set out in the Dutch Financial Supervision Act was amended. The same day, another exception to the Dutch licence requirement for providing banking services was inadvertently included in Section 2:11(2) of the Dutch Financial Supervision Act. On 1 July 2015, the Dutch legislator announced it planned to correct this by deleting the aforementioned subsection.

Background

On 1 January 2015, the Dutch Financial Supervision Act (Wet op het financieel toezicht, the “Wft”) introduced stricter conditions of the group finance companies exemption. These conditions are set out in Section 3:2 Wft. In addition, the Dutch legislator mistakenly included a new exception to the requirement to obtain a banking licence for providing banking services in Section 2:11(2)(b) Wft. Pursuant to this new exception, there is no requirement to obtain a banking licence if Section 3:5 Wft is not applicable. Section 3:5 Wft contains the prohibition to attract, obtain or hold repayable funds from the public.

Relevance

One of the exceptions to the prohibition to attract, obtain or hold repayable funds from the public occurs when a person attracts, obtains or holds these funds as a result of offering securities to the public in accordance with the requirements of part 5.1 Wft (the requirements of the Prospectus Directive). As a result of the new exception to the banking licence requirement that entered into force on 1 January 2015 (Section 2:11(2)(b)), any person offering securities in accordance with the requirements of part 5.1 Wft is exempt from the requirement to obtain a banking licence to provide banking services.

This would mean that issuing institutions are permitted to provide banking services. The Dutch legislator has now explained that this new exception in Section 2:11(2) was included by mistake and has proposed to correct this by deleting the exception form the Wft.

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