NETHERLANDS Law and Practice Contributed by: Johannes de Jong and Juliet de Graaf, Osborne Clarke N.V.
3. Changes in Control 3.1 Requirements for Acquiring or Increasing Control Over a Bank For the acquisition, holding, or increase of a qualifying holding in a Dutch-licensed bank, prior approval from the ECB is required in the form of a DNO. The requirements regarding DNOs are laid down in sections 1.6.1a and 3.3.11.1 DFSA. Further - more, the following guidelines are relevant: • EBA, EIOPA and ESMA Guidelines on qualify - ing holdings of December 2016 (the “Joint Guidelines”); and • ECB Guide on qualifying holding procedures of March 2023. Qualifying Holding There are three situations in which a qualifying holding exists: • a direct or indirect holding of 10% or more of the issued capital of a Dutch-licensed bank; • the power to exercise, directly or indirectly, 10% or more of the voting rights in a Dutch- licensed bank; or • the power to exercise a significant influence over the management of a Dutch-licensed bank. To assess whether qualifying holdings exist, the ownership chain of the Dutch-licensed bank must be analysed using the calculation methods set out in the Joint Guidelines. The calculation methods include certain aggregation rules. One such rule is that for parties that “act in concert”, the holdings of the relevant parties are aggre - gated, and each party is considered to hold the resulting aggregated percentage. The Joint Guidelines list various indicative factors for act -
European Passport A Dutch-licensed bank that seeks to provide services in other European Economic Area (EEA) jurisdictions can do so on the basis of a so-called European passport, either by opening a branch or providing cross-border services in the respective EEA jurisdictions. The process of obtaining a passport involves several stages. A Dutch-licensed bank can follow a passport notification procedure through the IMAS portal of the ECB which will then be forwarded to the DNB. The services that a Dutch-licensed bank can provide in other EEA jurisdictions may be all or a selection of services for which the Dutch- licensed bank is authorised. When launching new activities or changing notification details, the Dutch-licensed bank must re-run the notification procedure. On receipt of a European passport notification, the DNB, as regulator of the home member state, will assess the completeness and accuracy of the information provided. Where the information provided in the notification is assessed to be incomplete or incorrect, the DNB must inform the bank without delay, indicating in which respect the information is assessed to be incomplete or incorrect. The DNB must, within one month of receipt of a complete and accurate notification, send that notification to the compe - tent regulator of the host state. To establish a branch, the DNB submits the branch notification to the host state regulator within thirteen weeks. The host state regulator then has two months to prepare its supervision for the new branch. Unlike the provision of cross- border services, a branch can start its activities two months after the host state regulator con - firms the receipt of a complete notification.
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