A proposed change to the Dutch regime for Group Finance Companies (“GFCs”) would require a number of GFCs to apply for a banking licence. The change is part of the proposed 2015 Financial Markets Amendment Act (the “Draft Act”), which would come into force on 1 January 2015. Public consultation for the Draft Act has ended. De Brauw and a few other leading law firms participated in the consultation with the aim to safeguard the banking licence exception for GFCs. Our response can be found here.
Current regulatory regime
The EU banking directives contain a licence obligation for banks with a seat in the Netherlands. In addition, there is a prohibition on attracting repayable funds from the public in the Netherlands, regardless of the use of that funding.
The Financial Markets Supervision Act currently provides an exception from the banking licence requirement and the prohibition available to GFCs (i) attracting repayable funds through the offering of securities, and (ii) extending (i.e. on lending) at least 95% of the funds attracted from the public to group companies, provided that certain other requirements are met, notably relating to a guarantee of the GFC’s obligations.
The most sweeping of the proposed amendments are:
If enacted as proposed, the new regime will apply to the attracting of funds after the Draft Act enters into effect. There should be no impact on prior transactions.
A GFC that only attracts funds from PMPs would not fall within the scope of the banking licence requirement or the prohibition on attracting repayable funds and would not need to rely on the exception. However, a GFC that obtains funds from the public after the Draft Act enters into effect will need a banking licence if it does not meet the new requirements.
10 July 2020
7 July 2020
22 May 2020
16 April 2020
16 March 2020
13 March 2020
2 January 2020
17 December 2019
16 December 2019
16 December 2019