Doing Business in the Netherlands 2012 - American Chamber of ...

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equirements of the 2003 Reporting Provisions and 1994 Foreign Financial Relations Act are met. 22.2 Regulated Financial Activities The Financial Supervision Act (Wet op het financieel toezicht, the FSA) took effect on 1 January 2007. The FSA, and the regulations which are based upon the FSA, encompass practically all the rules and conditions that apply to Dutch financial undertakings and their supervision. Under the FSA, a distinction is made between prudential supervision by DNB and conduct of business supervision by the Dutch Authority for the Financial Markets (Autoriteit Financiële Markten, or AFM). We will set out a high-level overview of the most important activities regulated under the FSA below. Please note that this description is non-exhaustive and that we are happy to provide you with more specific information at your request. 22.2.1 Banking Activities Under the FSA, any company obtaining “repayable funds” (opvorderbare gelden) in the Netherlands in the conduct of a business or profession outside a restricted circle from (legal) persons other than so-called “professional market parties” and granting loans for its own account qualifies as a “bank.” Under the FSA, any funds that must be repaid, for whatever legal reason, if it is clear beforehand what the nominal repayable amount is and in which manner any applicable compensation (such as interest) is to be calculated, qualify as “repayable funds.” As the definition of “repayable funds” could entail more than just the borrowing of funds, caution must be exercised when assessing whether a company qualifies as a “bank.” For instance, it is possible that monetary obligations created in the context of complex financing structures which do not necessarily entail an obligation to repay borrowed money may nevertheless be considered to qualify as obtaining “repayable funds” within the meaning of the FSA. Similarly, taking into account the wide scope of the term “bank” under the FSA, certain 234 Baker & McKenzie
Doing Business in the Netherlands 2012 “non-banks” (such as finance companies) may also qualify as “banks” within the meaning of the FSA. In most instances, finance companies operating exclusively within a group of companies (i.e., obtaining repayable funds in the Netherlands within a “restricted circle” of legal persons or entities) do not qualify as “banks.” They are therefore likely to be exempt from the aforesaid requirements of the FSA. Pursuant to the FSA, “professional market parties” include, inter alia, licensed financial undertakings (e.g., banks, investment firms, undertakings for collective investment) and large corporations. A “restricted circle” is deemed to exist between persons and/or companies that belong to an objectively limited group and the criteria for access thereto are determined in advance in order to restrict access. In addition, a “restricted circle” presupposes and requires the existence of a legal relation between the person/company that attracts repayable funds and the persons/companies that provide such funds at the time the aforesaid funds are attracted. The legal relation implies that the “members” of such restricted circle must reasonably be aware of the financial situation of the person/company attracting the repayable funds. Except where a general exemption applies, a license is required in order to conduct banking activities in the Netherlands. DNB may grant an individual dispensation in exceptional cases. Without prejudice to the foregoing, article 3:7 of the FSA prohibits the use of the word “bank” in one’s company or trade name, unless such company is a licensed credit institution under the FSA. The Banking Directive has introduced a scheme of mutual recognition of licenses granted to credit institutions within the European Economic Area (“EEA”). If a license is granted by a supervising authority within the EEA to a credit institution, such license can be easily ‘passported’ to the Netherlands or any other country within the EEA. To passport such license, the supervising authority of the country in which the license was granted, must notify DNB and subject to the fulfillment of the relevant notification requirements, Baker & McKenzie 235
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Editorial Contributions Robert van
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Innovative ways to inform you Doing
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1 The Netherlands Doing Business in
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Steady-Course Policy Doing Business
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2 Legal Forms of Doing Business Doi
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2.3 Branch versus Subsidiary Doing
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4 The Subsidiary 4.1 Incorporation
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8 Commercial Contracts 8.1 General
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9 Real Estate 9.1 Ownership Doing B
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9.7 Leases Doing Business in the Ne
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10.5 The European Economic Area Doi
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12 Telecommunications 12.1 Market S
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12.9 Net Neutrality Doing Business
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14 Labor Law 14.1 Term Doing Busine
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14.4 Works Council Doing Business i
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17.5 Income Tax Ruling Doing Busine
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17.5.3 Status of the Employer Doing
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18.1.7 Non-Resident Shareholder Tax
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Page 289: www.bakermckenzie.nl Baker & McKenz
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