NETHERLANDS Law and Practice Contributed by: Johannes de Jong and Juliet de Graaf, Osborne Clarke N.V.
The DFSA is the main law governing financial institutions, including banks, and, for exam - ple, provides rules on authorisation, the code of conduct, capital, capital markets, and divi - sion of tasks/co-operation between the relevant regulatory authorities. In addition to implementing European laws, the DFSA contains purely national laws, such as rules on the duty of care that applies to banks and remuneration rules, which are more strin - gent than European laws. Another important source of regulation is formed by a set of guidelines issued by the European Banking Authority (EBA). Although these guide - lines are not formal law, the Dutch Central Bank ( De Nederlandsche Bank , DNB) must apply these guidelines unless it has informed the EBA that it will deviate from the guidelines, which only happens on rare occasions. For example, the EBA guidelines provide detailed rules on the governance of banks and outsourcing of opera - tions by banks. Also notable is the ECB Guide on climate-related and environmental risks. Supervisory Authorities The main regulators for banks are: • the European Central Bank (ECB); • the DNB; and • the Dutch Authority for the financial markets ( Autoriteit financiele markten , AFM). The division of tasks between the ECB and the national regulators is based on the Single Supervisory Mechanism (SSM) Regulation and the SSM Framework Regulation, and is summa - rised below. • The ECB is responsible for (i) granting and revoking bank licences; (ii) granting Declara -
tions of No Objection ( verklaring van geen bezwaar , DNO) to qualified holders in a licensed bank, being those entities/persons that (in)directly hold 10% or more of the shares, voting rights or comparable control in a bank; and (iii) ongoing supervision of banks that qualify as significant institutions. Ongoing supervision is performed by Joint Supervisory Teams (JSTs), which are composed of ECB staff and staff of the national regulators. • Under overall oversight by the ECB, the DNB is responsible for prudential supervision of non-significant banks. • The AFM is responsible for ongoing code of conduct supervision of non-significant banks ( gedragstoezicht ). The AFM and the DNB closely co-operate. In practice, Dutch-licensed banks primarily interact with the DNB as part of ongoing supervision, including code of conduct supervision. 2. Authorisation 2.1 Licences and Application Process Introduction to Banking Licences in the Netherlands The requirement to obtain a banking licence in the Netherlands is laid down in the DFSA in con - junction with the Capital Requirements Regula - tion (CRR). Broadly, a licence is required when an institution both (i) takes deposits or other repay - able funds from the public (such as attracting debt); and (ii) grants credit for its own account. Limited exemptions to the licence requirement exist, such as the exemption for group financing companies, which covers institutions that raise funds through the issuance of securities and use these funds within their corporate group, subject to certain conditions.
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