Cross-border corporate lending into the Netherlands

On 9 July 2024, the sixth EU Capital Requirements Directive ("CRD VI") came into force, introducing  changes to the European ("EU") EU regulatory framework for cross-border lending. Under the current legislation, non-EU entities may conduct corporate lending activities without the need to be licensed as a bank or to establish a branch in the Netherlands. However, CRD VI will tighten these rules and force lenders to reconsider their EU activities. 

The current Dutch framework 

Pursuant to the Dutch Financial Supervision Act (Wet op het financieel toezicht) ("FSA") it is, in principle, prohibited to conduct banking activities in the Netherlands without a banking license. However, lenders may provide corporate loans  and legal entities may attract such loans or other repayable funds provided that the lenders, e.g, are not considered to be part of the "public". This requirement is complied with if funds are provided for more than EUR 100,000. This regime allows all third-country institutions to offer credit to Dutch legal entities on a cross-border basis without needing a banking license in the Netherlands. 

There are currently no other specific provisions in the FSA nor in relevant EU law in relation to cross-border corporate lending activities performed from countries outside the EU into the Netherlands.

The new EU CRD VI regime 

Under the new CRD VI legislation, third-country credit institutions are prohibited to conduct “core banking services” in the EU without the establishment of a branch that is subject to licensing requirements. Not only banks but also certain large investment firms which deal on own account or underwrite financial instruments and any other non-EU entity taking deposits or other repayable funds would be classified as a credit institution that would fall under the new EU Capital Requirements Regulation (“CCR”). Insurance and collective investment undertakings and commodity and emission allowance dealers are excluded from this definition. 

”Core banking services” include (i) accepting deposits and other repayable funds, (ii) lending and (iii) granting guarantees and commitments to EU-based clients. Restricted exemptions for interbank and intragroup activities as well as for reverse solicitation apply. Furthermore, certain investment and ancillary services within the meaning of Directive 2014/65/EU of the EU Parliament and of the Council of 15 May 2014 on markets in financial instruments ("MIFID") will be out of scope of “core banking activities”. Thus, the scope of the ban is, as amended, dependent on both the status of the third-country institution and the types of services provided in the EU. 

Implications on cross-border lending into the Netherlands 

Under the new regulatory framework, undertakings providing corporate lending in or into the Netherlands will be required to either obtain a branch license in the Netherlands or provide such core banking services through their licensed EU subsidiaries to be able to continue these activities. Since branch authorisation will not give rise to EU passporting rights, it is likely that non-EU banks prefer to perform corporate lending through EU licensed subsidiaries who do benefit from EU passporting rights.

However, other third-country undertakings that do not qualify as a credit institution or as a large investment firm under CRR, may still provide loans to legal entities based in the Netherlands, provided each loan exceeds EUR 100,000.

Furthermore, third-country firms providing services that fall within the scope of MIFID and CRD VI will be required to establish a branch in the EU. For example, a non-EU entity providing both investment advice and guarantees to clients in the Netherlands would need to establish a branch in the Netherlands or it would need to scale back its activities and discontinue offering “core banking services”.

Impact on secondary loan markets

So far, no specific guidance has been issued regarding whether the branch license requirement also applies to the secondary loan market. However, it is anticipated that loans originated for the purpose of being transferred to third parties might be subject to these licensing requirements. For example, this could occur when the purchaser of such loan is an in-scope third-country undertaking and provides the funds under the loan agreement to a Dutch corporate borrower. 

Dutch implementation framework; Future direction and timeline

The draft Implementation Act on Capital Requirements 2026 (“Implementatiewet kapitaalvereisten 2026”)  largely implements the CRD VI. The FSA and the Banking Act 1998 will be amended. The Dutch Minister of Finance published a consultation regarding the Implementation Act which ended on 28 May 2025. The Minister is working through the consultation reactions. The new rules should apply from 11 January 2026 onwards. 

The rules on the establishment and supervision of branches of third-country entities will apply from 11 January 2027, except for existing contracts signed before 11 July 2026, which will be subject to these rules from that date. In this regard, member states should be able to take measures should be taken to preserve clients’ "acquired" rights under existing contracts but it is unclear what "acquired rights" means and whether amendments (including the extent of such amendments) to existing contracts could trigger the requirement of establishing a licensed branch in an EU member state. 

Considering the above, non-EU banks and other non-EU undertakings should carefully review their deposit, lending and guarantee operations in the EU. In this regard, creating internal overviews of services provided across the EU and identifying where clients are having  would be advisable. Despite many non-EU banks already authorized entities in EU member states, it is important to review whether any lending activities are conducted by non-EU entities, as these may also need to be transitioned to an EU licensed subsidiary or analyses should be undertaken whether the current activities could still qualify for exemptions.

Please reach out to the Stibbe team if you have any further questions.