NETHERLANDS Law and Practice Contributed by: Johannes de Jong and Juliet de Graaf, Osborne Clarke N.V.
The available services that a bank can apply for under a licence are set out in Annex I to the Capital Requirements Directive 4 (CRD4). At a minimum, such services must include taking deposits and other repayable funds, as well as granting credit for own account. Depending on the activities of the institution, other services set out in this Annex must be applied for as part of the licence application process or later added following a licence expansion or notification pro - cedure. These include but are not limited to: • investment activities or investment services originating from the Markets in Financial Instruments Directive 2 (MiFID2); • crypto-asset services following from the Mar - kets in Crypto-Assets Regulation (MiCAR); • e-money and payment services originating from the Electronic Money Directive 2 (EMD2) and Payment Services Directive 2 (PSD2), including the issuance of e-money tokens (stablecoins) under MiCAR; and • consumer credit provision and servicing. In all cases, the respective bank must adhere to relevant additional conduct of business require - ments set out in the DFSA or applicable regula - tions. Licensing Process In practice, two phases can be distinguished in the process of obtaining a banking licence: the preliminary phase and the formal phase. The preliminary phase is used by the DNB and the ECB to provide feedback to the applicant prior to the formal licence being submitted. Formal submission must be done via the IMAS portal operated by the ECB. The application itself, along with all subsequent communication, is conducted primarily in English through the DNB. This reflects the international standards and practices of the banking industry. The DNB
offers comprehensive resources on its website, providing applicants with essential information on relevant laws, terms, and regulations. This includes updates and guidance, ensuring appli - cants are well-informed throughout the process. Once the formal licence application is received, the formal decision-making timeframe is 26 weeks. However, this period can be extended if further information is required or if additional questions arise from the application. The quality and completeness of the application are crucial as they significantly influence the duration of the process. Upon finalisation of the review by the DNB, the DNB provides a draft proposal to the ECB and the ECB will issue the final decision on the licence application. In practice, close to finalisation of the review by the DNB, the DNB will first share a written intention for a draft pro - posal with the ECB. The ECB will then review and provide feedback to the DNB, allowing the DNB and the applicant to address concerns that the ECB may have with the draft proposal. The banking licence application process, over - seen by the DNB and the ECB, is designed to ensure that new banking entities meet the many standards necessary for operating in the finan - cial sector. In addition to the licence application process, all direct and indirect qualifying share - holders of the prospective bank have to obtain a DNO from the ECB. The application process for DNOs runs parallel to the banking licence pro - cess and ultimately is part of the draft proposal prepared by the DNB for the ECB to formally decide on. The cost of processing a banking licence appli - cation applies regardless of the outcome of the application, whether it results in the granting, rejection, withdrawal, or a temporary hold of the licence.
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