NETHERLANDS Law and Practice Contributed by: Johannes de Jong and Juliet de Graaf, Osborne Clarke N.V.
Ongoing Requirements Once the DNO is obtained, ongoing require - ments apply towards the ECB and/or DNB, such as the requirements to: • notify material changes in previously provided information or circumstances; • report any instances where the holding falls below 10%, 20%, 33%, 50% or 100%; • obtain a new DNO before increasing the hold - ing to or above 20%, 33%, 50% or 100%, unless the threshold falls within the specified bandwidth of the existing DNO; and • obtain prior approval for appointing new indi - viduals who effectively direct the business of a legal entity holding a DNO. 4. Governance 4.1 Corporate Governance Requirements The corporate governance requirements appli - cable to Dutch-licensed banks are primarily laid down in (i) the DFSA; (ii) Book 2 of the Dutch Civil Code ( Burgerlijk Wetboek ); (iii) the EBA Guide - lines on internal governance; and (iv) the Dutch Corporate Governance Code (DCGC). Two-tier Model The DFSA prescribes that a Dutch-licensed bank must apply a two-tier model, whereby manage - ment is separate from management supervision. Management is performed by a management board consisting solely of executive directors, while management supervision is carried out by the supervisory board. As follows from the Dutch Civil Code and the EBA Guidelines on internal governance: • the management board is responsible for the general day-to-day operations of the bank; and
ing in concert, including the existence of family relationships or a consistent voting pattern. In complex acquisition structures, such as pri - vate equity firms, sovereign wealth funds and conglomerates, an extensive qualifying holding analysis may be required. DNO Application A DNO must be obtained from the ECB. The DNB plays a key role in preparations and serves as the primary contact. The DNO application form is to be submitted through the ECB’s IMAS Portal. The current version of the form requests appli - cants to also submit one or more ancillary forms through the DNB’s MyDNB Portal. The statutory consideration period is 62 business days, which can be extended once by 30 business days if supplementary information is needed. The DNO assessment encompasses, at a high level, the following areas: • (i) the integrity ( betrouwbaarheid ) and reputa - tion ( reputatie ) of the qualifying holder; • (ii) the financial soundness of the qualifying holder; • (iii) whether the licensed bank will be able to continue meeting its prudential requirements as a result of the holding; and • (iv) whether the holding may involve actual or attempted money laundering or terrorist financing or might increase the risk thereof. For legal entity DNO applicants, the individuals who effectively direct the business of the legal entity are also screened. This screening primarily relates to areas (i) and (iv).
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