Financial
Supervision Act
Part II Market Access Financial Enterprises
Chapter 2.2 Access to the financial markets of the Netherlands
Section 2.2.0 Conducting the business of a payment service
provider
§ 2.2.0.1 Requirements for licensing payment service providers having
their seat in the Netherlands
Article 2:3a License for payment service providers
- 1. It is prohibited for any person
having his seat in the Netherlands to conduct the business of a payment
service provider without a license granted for that purpose by the Dutch
Central Bank.
- 2. Paragraph 1 does not apply to financial enterprises
that have a license, granted by the Dutch Central Bank on the basis of
the present Part, to conduct the business of a bank or to conduct the
business of an electronic money institution, insofar as it is permitted
for them pursuant to that license to provide payment services.
- 3. Paragraph 1 does not apply to electronic money institutions
having their place of business in a State designated by the Minister as
meant in Article 2:10f, paragraph 3, and that meet the requirements set
out in Article 2:10f, paragraph 3.
Article 2:3b Statutory provisions to be met
- 1. Upon application, the Dutch Central
Bank shall grant a license for conducting the business of a payment service
provider, if the applicant shows that he will comply with the provisions
arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:15, paragraph 1 and 2, with regard to the
minimum number of persons who lay out the day to day policy and who determine
the place from which they perform their activities;
e. Article 3:16, paragraph 1 and 2, with regard to the
control structure
f. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
g. Article 3:29a, paragraph 1, with regard to securing
received means from payment services, where applicable;
h. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital, and;
i. Article 3:57, paragraph 1 up to and including 3, with
regard to solvency.
- 2. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. The Dutch Central Bank shall take a decision on
the application within three months after the application was received
or, if the application is incomplete, within three months after all data
required for taking the decision were received.
- 4. Article 4:14 of the General Administrative Law Act
and Article 1:102, paragraph 1, do not apply.
Article 2:3c Provision of payment services through intervention of a payment
service broker
- 1. A payment service provider [having its seat in the
Netherlands checking] that intends to provide payment services through
intervention of a payment service broker, shall notify the Dutch Central
Bank thereof, with mention of the data which are to be specified by or
pursuant to Order in Council.
- 2. If the Dutch Central Bank has received data in accordance
with paragraph 1 and is convinced that these data are correct, it shall
enter the broker into the register meant in Article 1:107.
§ 2.2.0.2 Exemptions
Article 2:3d Exemption by Ministerial Regulation
A full or partial exemption from Article 2:3a, paragraph 1, may be arranged
by Ministerial Regulation. Conditions may be attached to such full or
partial exemption.
§ 2.2.0.3 Branch offices and payment service brokers of and the provision
of services by payment service providers having their seat in another
Member State
Article 2:3e Payment service providers from another Member State
- 1. A payment service provider having its seat in another
Member State may start the performance of its activities from a branch
office situated in the Netherlands or by intervention of a payment service
broker working in the Netherlands or by means of the provision of services
to the Netherlands, if it has a license to do so granted by the supervisory
authority of that Member State.
- 2. Article 1:107, paragraph 2, does not apply.
§ 2.2.0.4 Payment service providers having their seat in a non-Member
State
Article 2:3f License for payment service providers from a non-Member State
- 1. It is prohibited for any person having its seat
in a non-Member State:
a. to conduct the business of a payment service provider
in the Netherlands;
b. to conduct the business of a payment service provider
from a branch office in the Netherlands towards or in another Member State.
- 2. Paragraph 1 does not apply to financial enterprises
holding a license, granted by the Dutch Central Bank on the basis of the
present Part, to conduct the business of a bank, insofar as it is permitted
for them pursuant to that license to provide payment services.
Section 2.2.1 Conducting the business of a clearing institution
§ 2.2.1.1 Requirements for licensing clearing institutions having
their seat in the Netherlands
Article 2:4 License for clearing institutions
- 1. It is prohibited for any person having his seat
in the Netherlands to conduct the business of a clearing institution without
a license granted for that purpose by the Dutch Central Bank.
- 2. Paragraph 1 does not apply to financial enterprises
having their seat in the Netherlands that have obtained from the Dutch
Central Bank on the basis of the present Part a license to conduct the
business of a bank.
Article 2:5 Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:4, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:15, paragraph 1 and 2, with regard to the
minimum number of persons laying down the day-to-day policy and determining
the place from which they perform their activities;
e. Article 3:16, paragraph 1 and 3, with regard to the
control structure;
f. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
g. Article 3:19, paragraph 1 and 2, with regard to the
minimum number of members of the Supervisory Board or the comparable body
as referred to in Article 3:19, paragraph 2;
h. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital;
i. Article 3:57, paragraph 1 and 2, with regard to solvency,
and;
j. Article 3:63, paragraph 1 and 2, with regard to liquidity.
- 2. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (d), (f), (g), (h), (i) or (j), if the applicant shows that he reasonably
cannot comply with those provisions and that the objectives which the
Articles listed in paragraph 1 seek to achieve are reached otherwise.
§ 2.2.1.2 Branch offices and the provision of services by clearing
institutions having their seat outside the Netherlands
Article 2:6 Clearing institutions from outside the Netherlands
- 1. It is prohibited for any person having his seat
outside the Netherlands to conduct the business of a clearing institution
from a branch office situated in the Netherlands without a license granted
for that purpose by the Dutch Central Bank.
- 2. Paragraph 1 does not apply to clearing institutions
having their seat in a State to be designated by the Minister in which
the supervision over the conduct of business of a clearing institution
provides sufficient safeguards with respect to the interests which the
present Act seeks to protect. Further rules may be set by Order in Council
in respect of the designation of States. The Minister may revoke the designation
decision.
- 3. A decision to designate a State as referred to in
paragraph 2 and the revocation of such decision shall be published in
the Government Gazette (‘Staatscourant’).
- 4. Paragraph 2 does not apply to financial enterprises
having their seat in another Member State that have obtained a license
from the supervisory authority of that Member State to conduct the business
of a bank, unless the license specifies otherwise. Article 2:15 shall
apply accordingly.
Article 2:7 Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:6, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
e. Article 3:21 with regard to the minimum number of
persons laying down the day-to-day policy of the branch office and the
place from which they perform their activities;
f. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital;
g. Article 3:57, paragraph 1 and 2, with regard to solvency,
and;
h. Article 3:63, paragraph 1 and 2, with regard to liquidity,
on the understanding that, for the purposes of (a) up to and including
(d) and (f) up to and including (h), the phrase «a clearing institution
having its seat in the Netherlands» in the aforementioned Articles
must be read as: «the branch office in the Netherlands of a clearing
institution having its seat in a non-designated State», and that,
for the purposes of (e), the phrase «bank having its seat in a non-Member
State» in the aforementioned Article must be read as: «bank
having its seat in a non-designated State».
- 2. The application for the license shall be submitted
with mention of the data to be specified by or pursuant to Order in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (d), (f), (g) or (h), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached otherwise.
Article 2:8 Clearing institutions from outside the Netherlands providing
services to the Netherlands
- 1. It is prohibited for any person having his seat
outside the Netherlands to conduct the business of a clearing institution
by means of providing services to the Netherlands, unless he has notified
the Dutch Central Bank of his intention to do so and ensures and shows
that he will comply with what is provided pursuant to Article 3:17, 3:18,
3:20a and 3:57, on the understanding that the phrase «having their
seat in the Netherlands» in the aforementioned Articles shall be
read as «having their seat outside the Netherlands».
- 2. Paragraph 1 does not apply to clearing institutions
having their seat in a State to be designated by the Minister on the basis
of Article 2:6, paragraph 2, that are authorized in the State of their
seat to conduct their business.
- 3. Paragraph 1 does not apply to clearing institutions
having their seat in another Member State that have a license, granted
by the supervisory authority of that Member State, to conduct the business
of a bank, unless the license specifies otherwise. Article 2:18 shall
apply accordingly.
- 4. For the purposes of paragraph 1, clearing institutions
having their seat outside the Netherlands shall conduct the business of
a clearing institution by means of providing services to the Netherlands
if they do so via a regulated market for which a license as referred to
in Article 2:26, paragraph 1, has been granted or via a multilateral trading
facility for which a license as referred to in Article 2:96 has been granted
or via an investment firm operating as a systematic internaliser.
- 5. Where the Dutch Central Bank has received a notification
as referred to in paragraph 1, it shall, without delay, confirm the receipt
of this notification to the financial enterprise that made the notification.
Article 2:9 Formal requirements notification / starting moment for performing
services
- 1. The notification referred to in Article 2:8, paragraph
1, shall be made with mention of the data which are to be specified by
or pursuant to Order in Council.
- 2. The clearing institution referred to in Article
2:8, paragraph 1, may start performing its services after it has received
from the Dutch Central Bank the confirmation referred to in Article 2:8,
paragraph.
Article 2:10 Clearing institutions from a State designated by the Minister
- 1. A clearing institution as referred to in Article
2:6, paragraph 2, or Article 2:8, paragraph 2, that intends to conduct
the business of a clearing institution from a branch office situated in
the Netherlands or by means of providing services to the Netherlands,
shall notify the Dutch Central Bank of such intention. The clearing institution
shall submit a declaration issued by the supervisory authority of that
designated State from which shows that it is authorized in that State
to conduct the business of a clearing institution.
- 2. After the notification has been made and the declaration
has been issued, the clearing institution may start conducting the intended
business by providing services to the Netherlands, unless the Dutch Central
Bank announces that such intention or the proposed manner of conducting
the business is in conflict with the present Act.
- 3. Where the Dutch Central Bank has received a notification
as referred to in paragraph 1, it shall, without delay, confirm the receipt
of this notification to the clearing institution concerned.
- 4. Within two months after the receipt of the notification,
the Dutch Central Bank may notify the supervisory authority of the designated
State of the conditions which the clearing institution must observe for
reasons of public interest in conducting its business from the branch
office situated in the Netherlands. The Dutch Central Bank shall send
a copy thereof to the clearing institution.
Section 2.2.1A Conducting the business of an electronic
money institution
§ 2.2.1A.1 Requirements for licensing an electronic money institution
Article 2:10a License for electronic money institutions
- 1. It is prohibited for any person having his seat
in the Netherlands to issue electronic money without a license granted
for that purpose by the Dutch Central Bank.
- 2. Paragraph 1 does not apply to financial enterprises
that have a license, granted by the Dutch Central Bank on the basis of
the present Part, to conduct the business of a bank, insofar as it is
permitted for them pursuant to that license to issue electronic money.
Article 2:10b Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:10a, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:15, paragraph 1 and 2, with regard to the
minimum number of persons laying out the day-to-day policy and determining
the place from which they perform their activities;
e. Article 3:16, paragraph 1 and 2, with regard to the
control structure;
f. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
g. Article 3:29a with regard to securing means received
from users of payment services in return for electronic money;
h. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital, and;
i. Article 3:57, paragraph 1 up to and including 3, with
regard to solvency.
- 2. The application for the license shall be submitted
with mention of the data to be specified by or pursuant to Order in Council.
- 3. In derogation from Article 1:102, paragraph 1, the
Dutch Central Bank shall take a decision on the application within three
months after the application was received or, if the application was incomplete,
within three months after all data required for taking the decision were
received.
- 4. Article 4:14 of the General Administrative Law Act
does not apply.
Article 2:10c Electronic money institutions providing payment services
through intervention of a payment service broker
- 1. An electronic money institution having its seat
in the Netherlands that intends to provide payment services through intervention
of a payment service broker, shall notify the Dutch Central Bank thereof,
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 2. If the Dutch Central Bank has received data in accordance
with paragraph 1 and is convinced that these data are correct, it shall
enter the broker into the register meant in Article 1:107.
§ 2.2.1A.2 Exemptions
Article 2:10d Exemptions by Ministerial Regulation
A full or partial exemption from Article 2:10a, paragraph 1, may be arranged
by Ministerial Regulation. Conditions may be attached to such full or
partial exemption.
§ 2.2.1A.3 Branch offices and payment service brokers of and the
provision of services by electronic money institutions having their seat
in another Member State
Article 2:10e Electronic money institutions from another Member State
- 1. An electronic money institution having its seat in another Member
State may start the performance of its activities from a branch office
situated in the Netherlands or by intervention of a payment service broker
working in the Netherlands or by means of the provision of services to
the Netherlands, if it has a license to do so granted by the supervisory
authority of that Member State and the supervisory authority of the Member
State where it has its seat has notified its intention to provide services
to the Netherlands or to perform its activities from a branch office situated
in the Netherlands.
- 2. Without prejudice to paragraph 1, an electronic
money institution having its seat in another Member State may start providing
payment services through intervention of a payment service broker working
in the Netherlands, if it has a license, granted for such purpose by the
supervisory authority of that other Member State, that allows such activities.
§ 2.2.1A.4 Electronic money institutions having their seat in a non-Member
State
Article 2:10f Electronic money institutions from a non-Member State
- 1. It is prohibited for any person having its seat
in a non-Member State:
b. to conduct the business of an electronic money institution
in the Netherlands;
b. to conduct the business of an electronic money institution
from a branch office in the Netherlands towards or in another Member State.
- 2. Paragraph 1 does not apply to financial enterprises
holding a license, granted by the Dutch Central Bank on the basis of the
present Part, to conduct the business of a bank, insofar as it is permitted
for them pursuant to that license to issue electronic money
- 3. Paragraph 1 does not apply to electronic money institutions
having their seat in a State to be designated by the Minister.
Section 2.2.2 Conducting the business of a bank and financial
institution
§ 2.2.2.1 Requirements for licensing banks having their seat in the
Netherlands
Article 2:11 License for a bank or financial institution
- 1. It is prohibited for any person having its seat
in the Netherlands to conduct the business of a bank without a license
granted for that purpose by the Dutch Central Bank.
- 2. Paragraph 1 shall not apply to parties that obtain
the disposal of funds as referred to in Article 3:2.
Article 2:12 Statutory requirements to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:11, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:15, paragraph 1 and 2, with regard to the
minimum number of persons laying down the day-to-day policy and determining
the place from which they perform their activities;
e. Article 3:16, paragraph 1 and 2, with regard to the
control structure;
f. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
g. Article 3:19, paragraph 1 and 2, with regard to the
minimum number of members of the Supervisory Board or a comparable body
as referred to in Article 3:19(, paragraph 2;
h. Article 3:31 with regard to consolidated supervision;
i. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital;
j. Article 3:57, paragraph 1 and 2, with regard to solvency,
and;
k. Article 3:63, paragraph 1 and 2, with regard to liquidity.
- 2. If it concerns an application of a bank having its
seat in the Netherlands in which a qualified shareholder’s participation
is held, the Dutch Central Bank shall grant, without prejudice to paragraph
1, a license if the holder of the qualified shareholder’s participation
has applied for a declaration of no objection in accordance with Article
3:95, paragraph 2, and the Dutch Central Bank is of the opinion that the
provisions arising from Articles 3:99 to 3:101 in regard of the declaration
of no objection are complied with.
- 3. The application for the license is submitted with
mention of the data which are to be specified by Order in Council.
- 4. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (f), (g), (i), (j) or (k), if the applicant shows that he reasonably
cannot comply with those provisions and that the objectives which the
Articles listed in paragraph 1 seek to achieve are reached otherwise.
Article 2:13 Additional license for investment services and activities
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:11 to a bank which, in addition
to conducting the business of a bank, intends also to provide investment
services or to perform investment activities in the Netherlands, if the
applicant, without prejudice to Article 2:12, shows that he will comply
with the provisions arising from:
a. Article 4:14, paragraph 2, under (c), 1° up to
and including 6°, with regard to the operational structure;
b. Article 4:87 with regard to taking adequate measures
to protect clients’ rights, and;
c. Article 4:91a with regard to the rules applicable
to the trading process and the settlement of transactions in a multilateral
trading facility, if the applicant intends to operate a multilateral trading
facility.
- 2. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
§ 2.2.2.2 Branch office and provision of services by banks having
their seat in another Member State
Article 2:14 Banks from another Member State with a branch office in the
Netherlands
- 1. If the Dutch Central Bank receives a notification
from a supervisory authority of another Member State of the intention
of a bank having its seat in another Member State to conduct its business
from a branch office situated in the Netherlands, it shall, without delay,
notify the bank involved of the receipt of such notification.
- 2. Within two months after the receipt of such notification,
the Dutch Central Bank may inform the supervisory authority of the other
Member State of the conditions which the bank must observe for reasons
of public interest in the conduct of its business from a branch office
situated in the Netherlands. The Dutch Central Bank shall send a copy
thereof to the bank.
Article 2:15 Starting moment for conducting the business of a bank from
a Dutch branch office
- 1. A bank having its seat in another Member State that
holds a license to conduct its business, granted by the supervisory authority
of that Member State, and that intends to conduct its business from a
branch office situated in the Netherlands, may start doing so two months
after receiving the notification referred to in Article 2:14, paragraph
1, or immediately after receiving the notification referred to in Article
2:14, paragraph 2.
- 2. The bank is permitted to perform the activities
listed in Annex I of the Recast Banking Directive, unless the notification
referred to in Article 2:14, paragraph 2, expressly provides otherwise
or that notification does not mention the performance of those activities.
Article 2:16 Banks from another Member State without a (voluntary) license
- 1. It is prohibited for any person having his seat
in another Member State who, under the law of the Member State where he
has his seat, does not require a license granted by the supervisory authority
of that Member State to conduct the business of a bank and who has not
obtained such license on a voluntary basis, to conduct the business of
a bank from a branch office situated in the Netherlands without a license
granted for that purpose by the Dutch Central Bank.
- 2. As far as it concerns the conduct of business of
an electronic money institution, paragraph 1 does not apply to financial
enterprises having their seat in another Member State that have obtained
a license from the supervisory authority of that Member State to conduct
the business of a bank, unless that license specifies otherwise.
- 3. It is prohibited for any person having his seat
in another Member State who, under the law of the Member State where he
has his seat, does not require a license granted by the supervisory authority
of that Member State to conduct the business of a bank and who has not
obtained such license on a voluntary basis, to conduct the business of
a bank by providing services to the Netherlands, unless he has notified
the Dutch Central Bank thereof and has shown that he will comply with
the provisions arising from Article 3:57. If, pursuant to Article 3:57,
paragraph 2, further rules have been set by or pursuant to Order in Council,
the applicant shall also show that he will comply with those rules, insofar
as that Order in Council requires so.
- 4. Paragraph 1 and 3 do not apply to:
a. a person obtaining the disposal of callable funds
as referred to in Article 3:2, and;
b. a person obtaining or having the disposal of callable
funds as a result of offering transferable securities as referred to in
Chapter 5.1.
Article 2:17 Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:16, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
e. Article 3:21 with regard to the minimum number of
persons laying down the day-to-day policy of the branch office and the
place from which they perform their activities;
f. Article 3:46 with regard to consolidated supervision;
g. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital;
h. Article 3:57, paragraph 1 and 2, with regard to solvency;
i. Article 3:63, paragraph 1 and 2, with regard to liquidity,
and;
j. Article 3:75 with regard to separate bookkeeping (accounting),
on the understanding that, for the purposes of (a) up to and including
(d) and (g) up to and including (i), the phrase «a bank in the Netherlands»
in the aforementioned Articles must be read as: «the branch office
in the Netherlands of a bank having its seat in another Member State».
- 2. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (d), (g), (h) or (i), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached in other ways.
Article 2:18 Starting moment for providing bank services to the Netherlands
- 1. A bank having its seat in another Member State that
has obtained a license to conduct its business from the supervisory authority
of that Member State and that for the first time intends to conduct its
business by providing services to the Netherlands, may start doing so
after it has notified the supervisory authority of the Member State where
it has its seat of this intention.
- 2. The bank shall be permitted to perform the activities
listed in Annex I of the Recast Banking Directive, unless the Dutch Central
Bank has received a notification from the supervisory authority of the
Member State where the bank concerned has its seat, that explicitly provides
otherwise or does not specify the performance of those activities.
Article 2:19 [repealed on 01-01-2012]
§ 2.2.2.3 Requirements for licensing banks having their seat in a
non-Member State
Article 2:20 Banks from a non-Member State
It is prohibited for any person having his seat in a non-Member State
to conduct the business of a bank from a branch office situated in the
Netherlands without a license granted for that purpose by the Dutch Central
Bank.
Article 2:21 Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:20, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the liability of the persons
referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
e. Article 3:21 with regard to the minimum number of
persons laying down the day-to-day policy of the branch office and determining
the place from which they perform their activities;
f. Article 3:46 with regard to consolidated supervision;
g. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital;
h. Article 3:57, paragraph 1 and 2,with regard to solvency;
i. Article 3:63, paragraph 1 and 2, with regard to liquidity,
and;
j. Article 3:75 with regard to separate bookkeeping (accounts),
on the understanding that, for the purposes of (a) up to and including
(d) and (g) up to and including (i), the phrase «a bank in the Netherlands»
in the aforementioned Articles must be read as: «the branch office
in the Netherlands of a bank having its seat in a non-Member State».
- 2. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (d), (g), (h) or (i), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached otherwise.
Article 2:22 Additional license for investment services or activities
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:20 to a bank which, in addition
to conducting the business of a bank, intends also to provide investment
services or perform investment activities in the Netherlands, if the applicant,
without prejudice to Article 2:21, shows that he will comply with the
provisions arising from:
a. Article 4:14, paragraph 2, under (c), 1° up to
and including 6°, with regard to the operational structure;
b. Article 4:87 with regard to taking adequate measures
to protect clients’ rights, and;
c. Article 4:91a with regard to the rules applicable
to the trading process and the settlement of transactions in a multilateral
trading facility, if the applicant intends to operate a multilateral trading
facility.
- 2. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
Article 2:23 [repealed on 01-01-2012]
§ 2.2.2.4 Branch office and provision of services by financial institutions
having their seat in another Member State
Article 2:24 Financial institutions from another Member State with a branch
office in the Netherlands
- 1. If the Dutch Central Bank receives a notification
from a supervisory authority of another Member State of the intention
of a financial institution having its seat in another Member State to
conduct its business from a branch office situated in the Netherlands
or by means of providing services to the Netherlands, it shall, without
delay, notify the financial institution involved of the receipt of this
notification.
- 2. Within two months after the receipt of the notification
regarding the intention to conduct the business from a branch office situated
in the Netherlands, the Dutch Central Bank may inform the supervisory
authority of the other Member State of the conditions which the financial
institution must observe for reasons of public interest in conducting
its business or performing financial services in the Netherlands. The
Dutch Central Bank shall send a copy thereof to the financial institution.
Article 2:25 Starting moment for conducting the business of a financial
institution from a Dutch branch office
- 1. A financial institution having its seat in another
Member State which has obtained a declaration on the conduct of its business
that corresponds to the supervisory status certificate referred to in
Article 3:110, and which intends to conduct its business from a branch
office situated in the Netherlands, may start doing so two months after
the date on which Dutch Central Bank received the notification referred
to in Article 2:24, paragraph 1, or immediately after receipt of the notification
referred to in Article 2:24, paragraph 2.
- 2. The financial institution shall be permitted to
perform the activities listed in Annex I, Articles 2 up to and including
12 and 15, of the Recast Banking Directive, unless the declaration referred
to in paragraph 1 expressly provides otherwise or the notification referred
to in Article 2:24, paragraph 1, does not specify the performance of those
activities.
Article 2:26 Declaration on the conduct of business issued by another
Member State
It is permitted for a financial institution having its seat in another
Member State which has obtained from the supervisory authority of that
Member State a declaration on the conduct of its business that corresponds
to the supervisory status certificate referred to in Article 3:110, and
which conducts its business by providing services to the Netherlands,
to perform the activities listed in Annex I, Articles 2 up to and including
12 and 15, of the Recast Banking Directive, unless the declaration issued
in that Member State that corresponds to the supervisory status certificate
referred to in Article 3:110 expressly provides otherwise, or it has failed
to notify the supervisory authority of the Member State where it has its
seat of the activities which it intends to perform by providing services
to the Netherlands.
Section 2.2.2A Conducting the business of a reinsurer
§ 2.2.2A.1 Requirements for licensing reinsurers having their seat
in the Netherlands
Article 2:26a License for reinsurers
- 1. It is prohibited for any person having his seat
in the Netherlands to conduct the business of reinsurer without a license
granted for that purpose by the Dutch Central Bank.
- 2. The business of reinsurer shall be subdivided into
life reinsurance activities, funeral expenses and benefits in kind reinsurance
activities and non-life reinsurance activities.
- 3. Paragraph 1 shall not apply to life insurers, funeral
expenses and benefits in kind insurers or non-life insurers insofar as
they conduct the business of reinsurer in life reinsurance activities,
funeral expenses and benefits in kind reinsurance activities or non-life
reinsurance activities.
Article 2:26b Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:26a, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:15, paragraph 1 and 2, with regard to the
minimum number of persons laying down the day-to-day policy and determining
the place from where they perform their activities;
e. Article 3:16, paragraph 1 and 2, with regard to the
control structure;
f. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
g. Article 3:19, paragraph 1, with regard to the minimum
number of members of the Supervisory Board;
h. Article 3:20 with regard to the legal type of the
person;
i. Article 3:53, paragraph 1 up to and including 4, with
regard to the minimum equity capital;
j. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, and;
k. Article 3:70 with regard to the financial year.
- 2. If it concerns an application of a reinsurer having
its seat in the Netherlands in which a qualified shareholder’s participation
is held, the Dutch Central Bank shall grant, without prejudice to paragraph
1, a license if the holder of the qualified shareholder’s participation
has applied for a declaration of no objection in accordance with Article
3:95, paragraph 2, and the Dutch Central Bank is of the opinion that the
provisions arising from Articles 3:99 up to and including 3:101 regarding
the declaration of no objection are complied with.
- 3. The application shall be submitted with mention
of the reinsurance activity and of the data which are to be specified
by or pursuant to Order in Council.
- 4. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (d), (f), (g) or (k), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached otherwise.
§ 2.2.2A.2 Branch offices of and provision of services by reinsurers
having their seat in another Member State
Article 2:26c Reinsurers from another Member State
- 1. A reinsurer having its seat in another Member State
may start conducting its business from a branch office situated in the
Netherlands or by means of providing services to the Netherlands if it
has obtained a license for that purpose from the supervisory authority
of that Member State.
- 2. Article 1:107, paragraph 2, shall not apply.
§ 2.2.2A.3 Branch offices and provision of services by reinsurers
having their registered office in a non-Member State
Article 2:26d Reinsurers from a non-Member State with a branch office
in the Netherlands
- 1. It is prohibited for any person having his seat
in a non-Member State to conduct the business of reinsurer from a branch
office situated in the Netherlands without a license granted for that
purpose by the Dutch Central Bank.
- 2. The business of reinsurer shall be subdivided into
life reinsurance activities, funeral expenses and benefits in kind reinsurance
activities and non-life reinsurance activities.
- 3. Paragraph 1 shall not apply to reinsurers having
their seat in a State to be designated by the Minister in which the supervision
of the conduct of business of a reinsurer provides sufficient safeguards
with respect to the interests which the present Act seeks to protect.
Further rules may be set by Order in Council as regards the designation
of States. The Minister may revoke the designation decision.
- 4. Paragraph 1 shall not apply to:
a. life insurers that hold a license as referred to in
Article 2:40 to conduct the business of a life insurer from a branch office
situated in the Netherlands, insofar as they conduct the business of a
reinsurer in life reinsurance activities;
b. funeral expenses and benefits in kind insurers having
their seat in a designated State or holding a license as referred to in
Article 2:50 to conduct the business of a funeral expenses and benefits
in kind insurer, insofar as they conduct the business of a reinsurer in
funeral expenses and benefits in kind reinsurance activities, and;
c. non-life insurers that hold a license as referred
to in Article 2:40 to conduct the business of a non-life insurer from
a branch office situated in the Netherlands, insofar as they conduct the
business of a reinsurer in non-life reinsurance activities. -
5. A decision to designate a State as referred to in paragraph
3, and the revocation of such a decision, shall be published in the Government
Gazette (‘Staatscourant’).
Article 2:26e Statutory provisions which have to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:26d, paragraph 1, if the applicant
shows, with regard to the branch office, that he will comply with the
provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:16, paragraph 1 and 2, with regard to the
control structure;
e. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
f. Article 3:53, paragraph 1 up to and including 4, with
regard to the minimum equity capital;
g. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, and;
h. Article 3:70 with regard to the financial year,
as well as that the applicant complies with Article 3:24, with regard
to legal personality, the authority to conduct the business of a reinsurer,
and the exercise of that authority, on the understanding that, for the
purposes of (a) up to and including (h), the phrase «an insurer»
in the Articles referred to in those paragraphs must be read as: «the
branch office in the Netherlands of a reinsurer having its seat in a non-designated
State».
- 2. The application shall be submitted with mention
of the data which are to be specified by or pursuant to Order in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (e) or (h), if the applicant shows that he reasonably cannot comply
with those provisions and that the objectives which the Articles listed
in paragraph 1 seek to achieve are reached otherwise.
Article 2:26f Reinsurers from a non-Member State providing services to
the Netherlands from a place of business in a non-Member State
- 1. It is prohibited for any person having his seat
in a non-Member State to conduct the business of a reinsurer by means
of providing services to the Netherlands from a place of business in a
non-Member State, unless he has notified the Dutch Central Bank of his
intention to do so and shows that he will comply with the provisions arising
from:
a. Article 3:24 with regard to legal personality, the
authority to conduct the business of a reinsurer and the exercise of that
authority, and;
b. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, on the understanding that, for the purposes of the
present paragraph, the phrase «an insurer having its seat in the
Netherlands» in that Article must be read as: «a reinsurer
having its seat in a non-designated State».
The reinsurer shall submit a declaration issued by the supervisory authority
of the State where it has its seat showing that it is authorized in that
State to conduct the business of a reinsurer.
- 2. The notification shall be made with mention of the
data which are to be specified by or pursuant to Order in Council.
- 3. The reinsurer may start conducting its business
by means of providing services to the Netherlands after the notification
referred to in Article 2:47 and after the issuance of the declaration
referred to in paragraph 1.
- 4. The reinsurer referred to in paragraph 1 shall conduct
its business by means of providing services to the Netherlands only in
the activities with regard to which it is authorized to do so in the State
where it has its seat.
- 5. Paragraph 1 shall not apply to reinsurers conducting
their business from a place of business in a State designated by the Minister
on the basis of Article 2:26d, paragraph 3.
Article 2:26g Reinsurers from a non-designated State
- 1. A reinsurer having its seat in a non-designated
State may start conducting its business from a branch office situated
in another Member State by means of providing services to the Netherlands,
if it has obtained a license from the supervisory authority of that Member
State to conduct its business from that branch office.
- 2. A reinsurer having its seat in a State designated
by the Minister on the basis of Article 2:26d, paragraph 3, may start
conducting its business from a branch office in another Member State by
means of providing services to the Netherlands.
- 3. Article 1:107, paragraph 2, shall not apply to reinsurers
as referred to in paragraph 1 and 2.
Section 2.2.3 Conducting the business of a life insurer
and non-life insurer
§ 2.2.3.1 Requirements for licensing life insurers and non-life insurers
having their seat in the Netherlands
Article 2:27 License for life insurers and non-life insurers
- 1. It is prohibited for any person having his seat
in the Netherlands to conduct the business of a life insurer or non-life
insurer without a license granted for that purpose by the Dutch Central
Bank.
- 2. Within the business of a life insurer and the business
of a non-life insurer, a distinction shall be made between the sectors
listed in the Sectors Annex belonging to the present Act.
- 3. Where it concerns the prohibition of conducting
the business of a life insurer, paragraph 1 shall not apply to financial
enterprises that only conduct the business of a funeral expenses and benefits
in kind insurer under a license as referred to in Article 2:48, paragraph
1..
Article 2:28 Situations in which no license can be granted
- 1. No license to conduct the business of a non-life
insurer shall be granted to a person who holds a license to conduct the
business of a life insurer.
- 2. No license to conduct the business of a life insurer
shall be granted to a person who holds a license to conduct the business
of a non-life insurer.
- 3. No license to conduct the business of a non-life
insurer shall be granted to a person who holds a license to conduct the
business of a reinsurer in life reinsurance activities or funeral expenses
and benefits in kind reinsurance activities.
- 4. No license to conduct the business of a life insurer
or funeral expenses and benefits in kind insurer shall be granted to a
person who holds a license to conduct the business of a reinsurer in non-life
reinsurance activities.
Article 2:29 Life insurers in the Permanent Health Insurance sector
- 1. A life insurer holding a license to conduct the
business of a life insurer in the Permanent Health Insurance sector shall
not be eligible for a license to conduct the business of a life insurer
in another sector.
- 2. A life insurer holding a license to conduct the
business of a life insurer in a sector other than the Permanent Health
Insurance sector shall not be eligible for a license to conduct the business
of a life insurer in the Permanent Health Insurance sector.
Article 2:30 Life insurers in the Capitalisation Activities sector or
the Group Pension Funds Management sector
Without prejudice to Article 2:31, the Dutch Central Bank shall only grant
a license to a life insurer having its seat in the Netherlands in respect
of the Capitalisation Activities sector or the Group Pension Funds Management
sector if the applicant holds a license in respect of the General Life
Insurance sector and ensures and shows that:
a. it will perform the activities in the aforementioned
Capitalisation Activities sector or the Group Pension Funds Management
sector, respectively, to such an extent that these activities are of subordinate
importance to its business as a whole, and;
b. in case of an application relating to the Group Pension
Funds Management sector, it will comply with any other rules that may
be set by or pursuant to Order in Council.
Article 2:31 Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:27, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:15, paragraph 1 and 2, with regard to the
minimum number of persons laying down the day-to-day policy and determining
the place from where they perform their activities;
e. Article 3:16, paragraph 1 and 2, with regard to the
control structure;
f. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
g. Article 3:19, paragraph 1, with regard to the minimum
number of members of the Supervisory Board;
h. Article 3:20 with regard to the legal type of the
person;
i. Article 3:53, paragraph 1 up to and including 4, with
regard to the minimum equity capital;
j. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, and;
k. Article 3:70 with regard to the financial year.
- 2. If it concerns an application of an insurer having
its seat in the Netherlands in which a qualified shareholder’s participation
is held, the Dutch Central Bank shall grant, without prejudice to paragraph
1, a license if the holder of the qualified shareholder’s participation
has applied for a declaration of no objection in accordance with Article
3:95, paragraph 2, and the Dutch Central Bank is of the opinion that the
provisions arising from Articles 3:99 up to and including 3:101 regarding
the declaration of no objection are complied with.
- 3. The application shall be submitted with mention
of the sector or sectors for which the license is requested and of the
data which are to be specified by or pursuant to Order in Council.
- 4. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (d), (f), (g) or (k), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached otherwise.
Article 2:32 Non-life insurers in the Motor Vehicle Liability sector
- 1. Upon application, the Dutch Central Bank shall grant
a license to conduct the business of a non-life insurer in the Motor Vehicle
Liability sector if the applicant, without prejudice to Article 2:31,
shows that he will comply with the provisions arising from:
a. Article 4:70, paragraph 1, under (a) and (b), with
regard to the obligations resulting from the Motor Insurance Liability
Act (Wet aansprakelijkheidsverzekering motorrijtuigen), and;
b. Article 4:70, paragraph 2, with regard to the loss
adjuster.
- 2. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
Article 2:33 Non-life insurers in the Legal Aid sector
- 1. Upon application, the Dutch Central Bank shall grant
a license to conduct the business of a non-life insurer in the Legal Aid
sector if the applicant, without prejudice to Article 2:31, shows that
he will comply with the provisions of Article 4:65 relating to the prevention
of conflicts of interest.
- 2. The application for a license shall be made with
mention of the data which are to be specified by or pursuant to Order
in Council.
§ 2.2.3.2 Branch office and provision of services by life insurers
and non-life insurers having their seat in another Member State
Article 2:34 Life insurers and non-life insurers from another Member State
- 1. If the Dutch Central Bank receives a notification
from a supervisory authority of another Member State of the intention
of a life insurer or non-life insurer having its seat in another Member
State to conduct its business from a branch office situated in the Netherlands
or by means of providing services to the Netherlands, it shall, without
delay, inform the life insurer or non-life insurer involved of the receipt
of this notification.
- 2. Within two months after the receipt of the notification
regarding the intention to conduct the business from a branch office,
the Dutch Central Bank may inform the supervisory authority of the other
Member State of the conditions which the life insurer or non-life insurer
must observe for reasons of public interest in conducting its business
in the Netherlands. The Dutch Central Bank shall send a copy thereof to
the life insurer or non-life insurer.
Article 2:35 Starting moment for conducting the business of a life insurer
or non-life insurer
A life insurer or non-life insurer having its seat in another Member State
that has obtained a license from the supervisory authority of that Member
State and that intends to conduct its business from a branch office situated
in the Netherlands, may start doing so two months after receiving the
notification referred to in Article 2:34, paragraph 1, or immediately
after receiving the notification referred to in Article 2:34, paragraph
2.
Article 2:36 Life insurers or non-life insurers from another Member State
without a (voluntary) license
- 1. It is prohibited for any person having his seat
in another Member State who, under the law of the Member State where he
has his seat, does not require a license granted by the supervisory authority
of that Member State to conduct the business of a life insurer or non-life
insurer and who has not obtained such license on a voluntary basis, to
conduct the business of a life insurer or non-life insurer, respectively,
from a branch office situated in the Netherlands without a license granted
for that purpose by the Dutch Central Bank.
- 2. It is prohibited for any person having his seat
in another Member State who, under the law of the Member State where he
has his seat, does not require a license granted by the supervisory authority
of that Member State to conduct the business of a life insurer or non-life
insurer and who has not obtained such license on a voluntary basis, to
conduct the business of a life insurer or non-life insurer, respectively,
by means of the provision of services without a license granted for that
purpose by the Dutch Central Bank, unless has has notified the Dutch Central
Bank of his intention to do so and shows that he will comply with the
provisions arising from:
a. Article 3:24 with regard to legal personality, the
authority to conduct the business of a life insurer or non-life insurer,
respectively, and the exercise of that authority, and;
b. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, on the understanding that, for the purposes of the
present paragraph, the phrase «an insurer having its seat in the
Netherlands» in that Article must be read as: «an insurer
having its seat in a non-Member State».
If, pursuant to Article 3:57, paragraph 2, further rules have been set
by or pursuant to Order in Council, the applicant shall also show that
he will comply with those rules, insofar as that Order in Council requires
so.
- 3. The notification referred to in paragraph 2 shall
be made with mention of the data which are to be specified by or pursuant
to Order in Council.
- 4. The insurer may start conducting its business from
the branch office situated in the Netherlands two months after receipt
of the notification referred to in Article 2:34, paragraph 1.
- 5. The insurer shall only conduct its business by means
of providing services to the Netherlands in the sectors in regard of which
it is authorised to do so in the State where it has its seat.
Article 2:37 Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:36, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
e. Article 3:47, paragraph 1 up to and including 3 and
5 up to and including 8, with regard to the representative of an insurer;
f. Article 3:53, paragraph 1 up to and including 4, with
regard to the minimum equity capital;
g. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, and;
h. Article 3:70, paragraph 1, with regard to the financial
year,
as well as that the applicant will comply with Article 3:24, with regard
to legal personality, the authority to conduct the business of a life
insurer or non-life insurer, and the exercise of that authority, on the
understanding that, for the purposes of (a) up to and including (d), (f)
and (g) the phrase «an insurer having its seat in the Netherlands»
in the Articles referred to in those paragraphs must be read as: «the
branch office situated in the Netherlands of an insurer having its seat
in another Member State».
- 2. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (d), (e) or (h), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached in other ways.
Article 2:38 Providing insurance services to the Netherlands from a place
of business in another Member State
- 1. A life insurer or non-life insurer having its seat
in another Member State that holds a license to conduct its business,
granted by the supervisory authority of that Member State, and that intends
for the first time to conduct its business by means of providing services
to the Netherlands from a place of business in another Member State, may
start doing so after receiving the notification as referred to in Article
2:34, paragraph 1.
- 2. The insurer shall only conduct its business by means
of providing services to the Netherlands in the sectors in regard of which
it is authorised to do so in the Member State where it has its seat.
- 3. In the case of Community co-insurance, paragraph
1 and 2 shall apply only to non-life insurers that are acting as the first
non-life insurer.
Article 2:39 Providing insurance services to the Netherlands from a branch
office in a non-Member State
- 1. A life insurer or non-life insurer having its seat
in another Member State that holds a license to conduct its business,
granted by the supervisory authority of that Member State, and that intends
for the first time to conduct its business by means of providing services
to the Netherlands from a branch office situated in a non-Member State,
shall, before starting the provision of services, notify the Dutch Central
Bank of such intention and provide the data to be specified by or pursuant
to Order in Council.
- 2. When the Dutch Central Bank has received a notification
as referred to in paragraph 1, it shall, without delay, confirm the receipt
of this notification to the insurer that made the notification. The insurer
may start conducting its business by means of providing services to the
Netherlands after receiving that confirmation.
- 3. In the case of Community co-insurance, paragraph
1 and 2 shall apply only to non-life insurers that are acting as the first
non-life insurer.
§ 2.2.3.3 Branch office and provision of services by life insurers
and non-life insurers having their seat in a non-Member State
Article 2:40 Life insurers and non-life insurers from a non-Member State
- 1. It is prohibited for any person having his seat
in a non-Member State to conduct the business of a life insurer or non-life
insurer from a branch office in the Netherlands without a license granted
for this purpose by the Dutch Central Bank.
- 2. Within the business of a life insurer and the business
of a non-life insurer, a distinction shall be made between the sectors
listed in the Sectors Annex of the present Act.
Article 2:41 Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:40 if the applicant shows that he
will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
e. Article 3:47, paragraph 1 up to and including 3 and
5 up to and including 8, with regard to the representative of an insurer;
f. Article 3:53, paragraph 1 up to and including 4, with
regard to the minimum equity capital;
g. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, and;
h. Article 3:70, paragraph 1, with regard to the financial
year,
as well as that the applicant will comply with Article 3:24, with regard
to legal personality, the authority to conduct the business of a life
insurer or non-life insurer, and the exercise of that authority, on the
understanding that, for the purposes of (a) to (d), (f) and (g) the phrase
«an insurer having its seat in the Netherlands» in the Articles
referred to in those paragraphs must be read as: «the branch office
situated in the Netherlands of an insurer having its seat in a non-Member
State».
- 2. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (d), (e) or (h), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached in other ways.
Article 2:42 Non-life insurers in the Motor Vehicle Liability sector
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:40 to an applicant who wishes to
conduct his business in the Motor Vehicle Liability sector if the applicant
shows, without prejudice to Article 2:41, that he will comply with the
provisions arising from:
a. Article 4:70, paragraph 1, under (a) and (b), with
regard to the obligations resulting from the Motor Insurance Liability
Act, and;
b. Article 4:70, paragraph 2, with regard to the loss
adjuster.
- 2. The application for a license shall be made with
mention of the data which are to be specified by or pursuant to Order
in Council.
Article 2:43 Non-life insurers in the Legal Aid sector
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:40 to an applicant who wishes to
conduct his business in the Legal Aid sector if the applicant, without
prejudice to Article 2:41, shows that he will comply with the provisions
of Article 4:65 relating to the prevention of conflicts of interest.
- 2. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
Article 2:44 Person from a non-Member State conducting the business of
a life insurer as well as of a non-life insurer
- 1. A person who conducts both, the business of a non-life
insurer and the business of a life insurer, in a non-Member State shall
only be eligible for a license to conduct the business of a non-life insurer.
- 2. Paragraph 1 shall not apply to insurers that since
15 March 1979 exclusively conduct the business of a life insurer from
branch offices situated in the Netherlands.
Article 2:45 Provision of insurance services to the Netherlands from a
place of business in a non-Member State
- 1. It is prohibited for any person having his seat
in a non-Member State to conduct the business of a life insurer or non-life
insurer by means of providing services to the Netherlands from a place
of business in a non-Member State, unless he has notified the Dutch Central
Bank of his intention to do so and shows that he will comply with the
provisions arising from:
a. Article 3:24 with regard to legal personality, the
authority to conduct the business of a life insurer or non-life insurer,
respectively, and the exercise of that authority, and;
b. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, on the understanding that, for the purposes of the
present paragraph, the phrase «an insurer having its seat in the
Netherlands» in that Article must be read as: «an insurer
having its seat in a non-Member State».
- 2. The notification shall contain the data to be specified
by or pursuant to Order in Council.
- 3. The life insurer or non-life insurer may start conducting
its business by means of providing services to the Netherlands after receiving
the confirmation referred to in Article 2:47.
- 4. The life insurer or non-life insurer referred to
in paragraph 1 shall only conduct its business by means of providing services
to the Netherlands in the sectors in regard of which it is authorised
to do so in the State where it has its seat.
Article 2:45a Insurers from a non-Member State in the Motor Vehicle Liability
sector
- 1. If the person referred to in Article 2:45, paragraph
1, wants to operate in the Motor Vehicle Liability sector, he shall also
show that he will comply with the provisions arising from:
a. Article 4:70, paragraph 1, under (a) and (b), with
regard to the obligations resulting from the Motor Insurance Liability
Act;
b. Article 4:70, paragraph 2,with regard to the loss
adjuster, and;
c. Article 4:71, paragraph 1, under (e), with regard
to the loss adjuster.
- 2. Article 2:45, paragraph 2 up to and including 4,
shall apply accordingly.
Article 2:46 Insurers from a non-Member State providing services to the
Netherlands from a branch office in another Member State
- 1. It is prohibited for any person having his seat
in a non-Member State to conduct the business of a life insurer or non-life
insurer by means of providing services to the Netherlands from a branch
office in another Member State, unless he has notified the Dutch Central
Bank thereof.
- 2. The notification shall contain the data which are
to be specified by or pursuant to Order in Council.
- 3. The life insurer or non-life insurer may start conducting
its business by means of providing services to the Netherlands from the
branch office after receiving the confirmation referred to in Article
2:47.
- 4. In the case of Community co-insurance, paragraph
1 and 2 shall apply only to non-life insurers which are acting as the
first non-life insurer.
Article 2:47 Confirmation of receipt of notification
Where the Dutch Central Bank has received a notification as referred to
in Articles 2:26f, paragraph 1, 2:45, paragraph 1, 2:46, paragraph 1,
or 2:54f, paragraph 1, it shall, without delay, confirm the receipt of
this notification to the entity for risk acceptance, reinsurer, life insurer
or non-life insurer that made the notification.
Section 2.2.4 Conducting the business of a funeral
expenses and benefits in kind insurer
§ 2.2.4.1 Requirements for licensing funeral expenses and benefits
in kind insurers having their seat in the Netherlands
Article 2:48 License for funeral expenses and benefits in kind insurers
- 1. It is prohibited for any person having his seat
in the Netherlands to conduct the business of a funeral expenses and benefits
in kind insurer without a license granted for that purpose by the Dutch
Central Bank.
- 2. Paragraph 1 shall not apply to financial enterprises
having their seat in the Netherlands that have obtained a license on the
basis of the present Part from the Dutch Central Bank to conduct the business
of a life insurer.
Article 2:49 Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:48 if the applicant shows that he
will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:15, paragraph 1 and 2, with regard to the
minimum number of persons laying down the day-to-day policy and the place
from which they perform their activities;
e. Article 3:16, paragraph 3, with regard to the control
structure;
f. Article 3:17 paragraph 1 and 2, with regard to the
operational structure;
g. Article 3:19 paragraph 1, with regard to the minimum
number of members of the Supervisory Board;
h. Article 3:20 with regard to the legal form;
i. Article 3:53, paragraph 1 up to and including 4, with
regard to the minimum equity capital;
j. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, and;
k. Article 3:70, paragraph 1, with regard to the financial
year.
- 2. The application for the license shall be made with
mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (d), (f), (g) or (k), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached in other ways.
§ 2.2.4.2 Requirements for licensing funeral expenses and benefits
in kind insurers having their seat outside the Netherlands
Article 2:50 Funeral expenses and benefits in kind insurers from outside
the Netherlands with a Dutch branch office
- 1. It is prohibited for any person having his seat
outside the Netherlands to conduct the business of a funeral expenses
and benefits in kind insurer from a branch office situated in the Netherlands
without a license granted for that purpose by the Dutch Central Bank.
- 2. Paragraph 1 shall not apply to funeral expenses
and benefits in kind insurers having their seat in a State to be designated
by the Minister in which the supervision over the conduct of the funeral
expenses and benefits in kind insurance business provides sufficient safeguards
with respect to the interests which the present Act seeks to protect.
Further rules may be set by Order in Council as regards the designation
of States. The Minister may revoke the designation decision.
- 3. Paragraph 1 shall not apply to life insurers holding
a license as referred to in Articles 2:36 or 2:40 in respect of the General
Life Insurance sector.
Article 2:51 Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:50 if the applicant shows that he
will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
of the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
e. Article 3:47, paragraph 1 up to and including 3 and
5 up to and including 8, with regard to the representative of an insurer;
f. Article 3:53, paragraph 1 up to and including 4, with
regard to the minimum equity capital;
g. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, and;
h. Article 3:70, paragraph 1, with regard to the financial
year,
as well as that the applicant will comply with Article 3:24, with regard
to legal personality, the authority to conduct the business of a funeral
expenses and benefits in kind insurer and the exercise of that authority,
on the understanding that, for the purposes of (a) up to and including
(d), (f) and (g) the phrase «an insurer having its seat in the Netherlands»
or the phrase «a life insurer having its seat in the Netherlands
or a non-life insurer having its seat in the Netherlands» in the
Articles referred to in those paragraphs must be read as: «the branch
office in the Netherlands of an insurer having its seat in a non-Member
State» or, respectively, «the branch office in the Netherlands
of a funeral expenses and benefits in kind insurer having its seat in
a non-Member State».
- 2. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c) and (d) up to and including (h), if the applicant shows that he reasonably
cannot comply with those provisions and that the objectives which the
Articles listed in paragraph 1 seek to achieve are reached otherwise.
Article 2:52 Funeral expenses and benefits in kind insurers from outside
the Netherlands providing services to the Netherlands
- 1. It is prohibited for any person having his seat
outside the Netherlands to conduct the business of a funeral expenses
and benefits in kind insurer by means of providing services to the Netherlands,
unless he has notified the Dutch Central Bank of his intention to do so.
- 2. Paragraph 1 shall not apply to funeral expenses
and benefits in kind insurers having their seat in a State to be designated
by the Minister pursuant to Article 2:50.
- 3. Paragraph 1 shall not apply to funeral expenses
and benefits in kind insurers having their seat in another Member State
that hold a license, granted by the supervisory authority of that Member
State, to conduct the business of a funeral expenses and benefits in kind
insurer.
- 4. Where the Dutch Central Bank has received a notification
as referred to in paragraph 1, it shall, without delay, confirm the receipt
of this notification to the financial enterprise that made the notification.
Article 2:53 Starting moment for conducting business
- 1. The notification referred to in Article 2:52, paragraph
1, shall be made with mention of the data which are to be specified by
or pursuant to Order in Council.
- 2. The funeral expenses and benefits in kind insurer
referred to in Article 2:52, paragraph 1, may start providing services
after it has received the confirmation referred to in Article 2:52, paragraph
4, from the Dutch Central Bank.
Article 2:54 Funeral expenses and benefits in kind insurers from a designated
State
- 1. A funeral expenses and benefits in kind insurer
as referred to in Article 2:50, paragraph 2, or Article 2:52, paragraph
2, that intends to conduct the business of a funeral expenses and benefits
in kind insurer from a branch office situated in the Netherlands or by
means of providing services to the Netherlands, shall notify the Dutch
Central Bank of such intention. The funeral expenses and benefits in kind
insurer shall submit a declaration issued by the supervisory authority
of that designated State from which shows that it is authorized in that
State to conduct the business of a funeral expenses and benefits in kind
insurer.
- 2. After the notification has been made and the declaration
has been issued, the funeral expenses and benefits in kind insurer may
start conducting the intended business by means of providing services
to the Netherlands, unless the Dutch Central Bank announces that such
intention is in conflict with the present Act.
- 3. Where the Dutch Central Bank has received a notification
as referred to in paragraph 1, it shall, without delay, confirm the receipt
of this notification to the funeral expenses and benefits in kind insurer
that made the notification.
- 4. Within two months after the receipt of the notification
from the funeral expenses and benefits in kind insurer, the Dutch Central
Bank may notify the supervisory authority of the designated State of the
conditions which the funeral expenses and benefits in kind insurer must
observe for reasons of public interest in conducting its business from
the branch office situated in the Netherlands. The Dutch Central Bank
shall send a copy thereof to the funeral expenses and benefits in kind
insurer.
Section 2.2.4A Conducting the business of an entity for
risk acceptance
§ 2.2.4A.1 Requirements for licensing entities for risk acceptance
having their seat in the Netherlands
Article 2:54a License for entities for risk acceptance
- 1. It is prohibited for any person having his seat
in the Netherlands to conduct the activities of an entity for risk acceptance
without a license granted for that purpose by the Dutch Central Bank.
- 2. A license as referred to in paragraph 1 shall mention
the type of reinsurance activities for which the license is granted.
Article 2:54b Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:54a, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:8 with regard to the proper credentials
the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:16, paragraph 1 and 2, with regard to the
control structure;
e. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
f. Article 3:19, paragraph 1, with regard to the minimum
number of members of the Supervisory Board;
g. Article 3:53, paragraph 1 up to and including 4, with
regard to the minimum equity capital;
h. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, and;
i. Article 3:70, paragraph 1, with regard to the financial
year.
- 2. If the application relates to an entity for risk
acceptance having its seat in the Netherlands in which a qualified shareholder’s
participation is held, the Dutch Central Bank shall, without prejudice
to paragraph 1, grant a license if the holder of the qualified shareholder’s
participation has applied for a declaration of no objection in accordance
with Article 3:95, paragraph 2, and the Dutch Central Bank is of the opinion
that the provisions arising from Articles 3:99 up to and including 3:101
regarding the declaration of no objection have been complied with.
- 3. The application for the license shall be made with
mention of the reinsurance activity and of the data which are to be specified
by or pursuant to Order in Council.
- 4. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (e), (f), (h) or (i), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached in other ways.
§ 2.2.4A.2 Branch offices of and provision of services by entities
for risk acceptance having their seat in another Member State
Article 2:54c Entities for risk acceptance from another Member State
- 1. An entity for risk acceptance having its seat in
another Member State may start conducting its activities from a branch
office situated in the Netherlands or by means of providing services to
the Netherlands, if it has obtained a license for that purpose from the
supervisory authority of that Member State.
- 2. Article 1:107, paragraph 2, shall not apply.
§ 2.2.4A.3 Branch offices of and provision of services by entities
for risk acceptance having their seat in a non-Member State
Article 2:54d Entities for risk acceptance from a non-Member State
- 1. It is prohibited for any person having his seat
in a non-Member State to conduct the activities of an entity for risk
acceptance from a branch office situated in the Netherlands without a
license granted for that purpose by the Dutch Central Bank.
- 2. Paragraph 1 shall not apply to entities for risk
acceptance having their seat in a non-Member State to be designated by
the Minister in which the supervision over the conduct of activities of
an entity for risk acceptance provides sufficient safeguards with respect
to the interests which the present Act seeks to protect. Further rules
may be set by Order n Council in regard of the designation of States.
The Minister may revoke the designation decision.
- 3. A decision to designate a State as referred to in
paragraph 2 and the revocation of such a decision shall be published in
the Government Gazette (‘Staatscourant’).
Article 2:54e Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:54d, paragraph 1, if the applicant
shows that, with regard to the branch office, he will comply with the
provisions arising from:
a. Article 3:8 with regard to the proper credentials
the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:16, paragraph 1 and 2, with regard to the
control structure;
e. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
f. Article 3:53, paragraph 1 up to and including 4, with
regard to the minimum equity capital;
g. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, and;
h. Article 3:70, paragraph 1, with regard to the financial
year,
as well as that the applicant complies with Article 3:24, with regard
to legal personality, the authority to conduct the activities of an entity
for risk acceptance, and the exercise of that authority, on the understanding
that, for the purposes of (a) to (h), the phrase «an insurer having
its seat in the Netherlands» in the Articles referred to in those
paragraphs must be read as: «the branch office in the Netherlands
of an entity for risk acceptance having its seat in a non-designated State».
- 2. The application for the license shall be made with
mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(c), (e), (g) or (h), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached in other ways.
Article 2:54f Entities for risk acceptance from a non-designated State
- 1. It is prohibited for any person having his seat
in a non-designated State to conduct the business of an entity for risk
acceptance by means of providing services to the Netherlands, unless he
has notified the Dutch Central Bank of his intention to do so and shows
that he will comply with the provisions arising from:
a. Article 3:24 with regard to legal personality, the
authority to conduct the business of an entity for risk acceptance and
the exercise of that authority, and;
b. Article 3:57, paragraph 1 up to and including 4, with
regard to solvency, on the understanding that, for the purposes of the
present paragraph, the phrase «an insurer having its seat in the
Netherlands» in that Article must be read as: «an entity for
risk acceptance having its seat in a non-designated State».
The entity for risk acceptance shall submit a declaration issued by the
supervisory authority of that non-designated State from which shows that
it is authorized in that State to conduct the activities of an entity
for risk acceptance.
- 2. The notification shall be made with mention of the
data which are to be specified by or pursuant to Order in Council.
- 3. The entity for risk acceptance may start conducting
its business by means of providing services to the Netherlands after the
notification referred to in Article 2:47 and after the issuance of the
declaration referred to in paragraph 1.
- 4. The entity for risk acceptance referred to in paragraph
1 shall only conduct its business by means of providing services to the
Netherlands in the activities in regard of which it is authorized to do
so in the State where it has its seat.
Section 2.2.4B Conducting the business of a premium pension
institution
§ 2.2.4B.1 Requirements for licensing premium pension institutions
Article 2:54g License for premium pension institutions
- 1. It is prohibited to conduct the business of a premium
pension institution without a license granted for that purpose by the
Dutch Central Bank.
- 2. The prohibition meant in paragraph 1 does not apply
to pension funds and pension institutions from another Member State.
Article 2:54e Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:54g, paragraph 1, if the applicant
has his seat in the Netherlands and shows that he will comply with the
provisions arising from:
a. Article 3:8 with regard to the proper credentials
the persons referred to in that Article;
b. Article 3:9 with regard to the reliability of the
persons referred to in that Article;
c. Article 3:10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
d. Article 3:15, paragraph 1 and 2, with regard to the
minimum number of persons laying down the day-to-day policy and determining
the place from which they perform their activities;
e. Article 3:16 with regard to the control structure;
f. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
g. Article 3:18 with regard to outsourcing work to third
persons;
h. Article 3:19a with regard to the legal type of the
person;
i. Article 3:35a with regard to capital funding and independency;
j. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital;
k. Article 4:71b, paragraph 1, with regard to the custody
of the pension capital by a pension custodian;
l. Article 4:71b, paragraph 2, with regard to the legal
type of the person and the objective of the pension custodian as described
in the articles of incorporation;
m. Article 4:71b, paragraph 3, with regard to the taking
of measures by the premium pension institution on order to protect the
rights of the persons entitled to the pension;
n. Article 4:71c with regard to the contracts to be concluded
between the premium pension institution and the contributing enterprise
and between the premium pension institution and the pension custodian.
- 2. If the applicant has his seat in the Netherlands
and has the intention to operate in the Netherlands as consultant, intermediary,
authorized agent or sub-authorized agent, the Dutch Central Bank shall
grant the license if the applicant, without prejudice to paragraph 1,
shows that he will comply with the provisions arising from:
a. Article 4:9, paragraph 2 and 3, with regard to the
professional skills of the persons meant in Article 4:9, paragraph 2;
b. Article 4:15, paragraph 2, under (b), opening words
and under 1° and 2°, with regard to the operating structure.
- 3. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 4. Upon application, the Dutch Central Bank may grant,
whether or not for a specific period of time, a full or partial dispensation
from paragraph 1, opening words and under (c), (d), (f), (g), (i), (j),
(k), (l) or (m), if the applicant shows that he reasonably cannot comply
with those provisions and that the objectives which the Articles listed
in paragraph 1 seek to achieve are reached otherwise.
Section 2.2.4C Conducting the business of an exchange institution
§ 2.2.4c.1 Requirements for licensing exchange institutions having
their seat in the Netherlands
Article 2:54i License for exchange institutions
- 1. It is prohibited for any person having his seat
in the Netherlands to conduct the business of an exchange institution
without a license granted for that purpose by the Dutch Central Bank.
- 2. Paragraph 1 does not apply to financial enterprises
which have a license, granted by the Dutch Central Bank on the basis of
the present Part, to conduct the business of a bank or of a payment service
provider.
- 3. Upon application, the Dutch Central Bank may grant
a dispensation from paragraph 1, if the applicant shows that the interests
which the present Part and Part III ‘Prudential Supervision Financial
Enterprises’ seek to protect are sufficiently protected otherwise.
Article 2:54j Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:54i, paragraph 1, if the applicant
shows that he will comply with the provisions arising from:
a. Article 3:9 with regard to the reliability of the
persons laying down or also laying down the policy;
b. Article 10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
c. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
- 2. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(b) of (c), if the applicant shows that he reasonably cannot comply with
those provisions and that the objectives which the Articles listed in
paragraph 1 seek to achieve are reached otherwise.
§ 2.2.4C.2 Exemption
Article 2:54k Exemptions granted by Ministerial Regulation
- 1. An exemption from Article 2:54i, paragraph 1, may
be granted by Ministerial Regulation.
- 2. An exemption from Article 2:54j, paragraph 1, may
be granted in full or in part by Ministerial Regulation.
§ 2.2.4C.3 Branch office of exchange institutions having their seat
outside the Netherlands
Article 2:54l Exchange institutions from outside the Netherlands
- 1. It is prohibited for any person having
his seat outside the Netherlands to conduct the business of an exchange
institution from a branch office situated in the Netherlands without a
license granted for that purpose by the Dutch Central Bank.
- 2. Paragraph 1 does not apply to exchange
institutions having their seat in a State to be designated by the Minister
where the supervision over the conduct of business of an exchange institution
is safeguarded sufficiently with respect to the interests which the present
Act seeks to protect. Further rules may be set by Order in Council with
respect to the designation of States. The minister may revoke a designation
decision.
- 3. The decision on the designation of a State
as referred to in paragraph 2 or a revocation of such decision shall be
made public in the Government Gazette (‘Staatscourant’).
- 4. Paragraph 1 does not apply to financial
enterprises having their seat in another Member State which have a license,
granted by the supervisory authority of that Member State, to conduct
the business of a payment service provider or a bank, unless the license
specifies otherwise.
Article 2:54m Statutory provisions to be met
- 1. Upon application, the Dutch Central Bank shall grant
a license as referred to in Article 2:54l, paragraph 1, if the applicant
shows that he will comply with the provisions arising from
a. Article 3:9 with regard to the reliability of the
persons laying down or also laying down the policy;
b. Article 10, paragraph 1 and 2, with regard to the
policy on the sound conduct of business;
c. Article 3:17, paragraph 1 and 2, with regard to the
operational structure;
on the understanding that, for the purposes of (a) up to and including
(c), the phrase «exchange institution having its seat in the Netherlands»
in the Articles referred to in those paragraphs must be read as: «the
branch office in the Netherlands of an exchange institution having its
seat in a non-designated State».
- 2. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Dutch Central Bank may grant
a full or partial dispensation from paragraph 1, opening words and under
(b) of (c), if the applicant shows that he reasonably cannot comply with
those provisions and that the objectives which the Articles listed in
paragraph 1 seek to achieve are reached otherwise.
Article 2:54n Exchange institutions from a designated State
- 1. An exchange institution as meant in Article 2:54l,
paragraph 2, that has the intention to conduct the business of an exchange
institution from a branch office situated in the Netherlands, shall notify
the Dutch Central Bank of that intention. When doing so, the exchange
institution shall submit a declaration, issued by the supervisory authority
of that designated State, from which shows that it is authorized to conduct
the business of an exchange institution in that State.
- 2. After the notification has been made and the declaration
has been issued, the exchange institution may start conducting the intended
business by means of a branch office in the Netherlands.
- 3. Where the Dutch Central Bank has received a notification
as referred to in paragraph 1, it shall, without delay, confirm the receipt
thereof to the exchange institution involved.
- 4. Within two months after the receipt of the notification,
the Dutch Central Bank may notify the supervisory authority of the designated
State of the conditions which the exchange institution must observe for
reasons of public interest in conducting its business from the branch
office situated in the Netherlands. The Dutch Central Bank shall send
a copy thereof to the exchange institution.
Section 2.2.5 Offering investment objects
§ 2.2.5.1 Requirements for licensing
Article 2:55 License for offering investment objects
- 1. It is prohibited to offer investment objects
in the Netherlands without a license granted for that purpose by the Authority
for the Financial Markets.
- 2. Upon application, the Authority for the
Financial Markets may, whether or not for a specific period, grant a dispensation
from paragraph 1 and from what is provided in Part IV ‘Conduct Supervision
Financial Enterprises’ with respect to the offering of investment
objects, if the applicant shows that the interests which the present Part
and Part IV ‘Conduct Supervision Financial Enterprises’ seek
to protect are sufficiently protected otherwise.
- 3. Paragraph 1 does not apply to the offering
of investment objects, insofar as it concerns contracts which were concluded
before 1 January 2007 with regard to investment objects which were not
an investment object at that time as referred to in Article 1, under (d),
of the Financial Services Act or which were designated pursuant to paragraph
(m), under 8°, of that Article, as a financial product.
Article 2:56 Exemptions
Article 2:55, paragraph 1, shall not apply to financial enterprises which:
a. have a license to conduct the business of an insurer,
granted by the Dutch Central Bank on the basis of the present Part, insofar
as it is permitted for them under that license to offer investment objects;
b. have a supervisory status certificate, issued by the
Dutch Central Bank on the basis of Part III ‘Prudential Supervision
Financial Enterprises’, insofar as it is permitted for them under
that certificate to offer investment objects, or;
c. have a license to conduct the business of a bank,
granted by the Dutch Central Bank on the basis of the present Part.
Article 2:57 Exemptions for financial enterprises from another Member
State
Article 2:55, paragraph 1, shall not apply to financial enterprises having
their seat in another Member State which:
a. conduct the business of a bank from a branch office
situated in the Netherlands or by means of providing services to the Netherlands,
insofar as they are permitted pursuant to Section 2.2.2 to offer investment
objects;
b. conduct the business of a financial institution from
a branch office situated in the Netherlands or by means of providing services
to the Netherlands, insofar as they are permitted pursuant to Section
2.2.2 to offer investment objects, or;
c. conduct the business of an entity for risk acceptance
or insurer from a branch office situated in the Netherlands or by means
of providing services to the Netherlands, insofar as they are permitted
pursuant to Sections 2.2.2A, 2.2.3, 2.2.4 or 2.2.4A to offer investment
objects.
Article 2:58 Statutory provisions to be met
- 1. Upon application, the Authority for the Financial
Markets shall grant a license as referred to in Article 2:55, paragraph
1, if the applicant shows that he will comply with the provisions arising
from:
a. Article 4:9, paragraph 1 up to and including 3, with
regard to the proper credentials and professional competence of the persons
referred to in that Article;
b. Article 4:10 with regard to the reliability of the
persons referred to in that Article;
c. Article 4:11, paragraph 2 and 3, with regard to the
policy on the sound conduct of business;
d. Article 4:13 with regard to the control structure,
and;
e. Article 4:15, paragraph 1 and 2, with regard to the
operational structure.
- 2. The application for the license shall be made with
mention of the data which are to be specified by or pursuant to Order
n Council.
- 3. Upon application, the Authority for the Financial
Markets may grant a full or partial dispensation from the provisions referred
to in paragraph 1, opening words and under (a), with regard to Article
4:9, paragraph 2 and 3, or under (c), with regard to Article 4:11, paragraph
3, or under (e), with regard to Article 4:15, paragraph 2, if the applicant
shows that he reasonably cannot comply with those provisions and that
the objectives which the Articles listed in paragraph 1 seek to achieve
are reached in other ways.
§ 2.2.5.2 Exemption
Article 2:59 Exemptions by Ministerial Regulation
- 1. An exemption from Article 2:55, paragraph 1, may
be granted by Ministerial Regulation, on the understanding that exempted
are in any event offerors of investment objects as far as those investment
objects are offered for a nominal amount per investment object of at least
€ 100,000.
- 2. A full or partial exemption from Article 2:58, paragraph
1, may be granted by Ministerial Regulation.
- 3. If an exemption as meant in paragraph 1 is granted
under the condition that, in the event of an offer or in advertisements
or documents mentioning the prospect of an offer, it has to be announced
that the exempted activity is not subjected to any license, then such
announcement shall be made in a way as to be determined by the Authority
for the Financial Markets.
Section 2.2.6 Offering credit
§ 2.2.6.1 Requirements for licensing
Article 2:60 License for offering credit
- 1. It is prohibited to offer credit in the Netherlands
without a license granted for that purpose by the Authority for the Financial
Markets.
- 2. Upon application, the Authority for the Financial
Markets may, whether or not for a fixed period, grant a dispensation from
paragraph 1 if the applicant shows that the interests which the present
Part and Part IV ‘Conduct Supervision Financial Enterprises’
seek to protect are sufficiently protected in other ways.
Article 2:61 Exemptions
- 1. Article 2:60, paragraph 1, does not apply to financial
enterprises which:
a. have a license, granted by the Dutch Central Bank
on the basis of the present Part, to conduct the business of an insurer,
insofar as it is permitted for them pursuant to that license to offer
credit;
b. have a supervisory status certificate, issued by the
Dutch Central Bank on the basis of Part III ‘Prudential Supervision
Financial Enterprises’, insofar as it is permitted for them pursuant
to that declaration to offer credit, or;
c. have a license, granted by the Dutch Central Bank
on the basis of the present Part, to conduct the business of a bank.
- 2. Article 2:60, paragraph 1, does not apply to municipal
credit banks in regard of which the provisions of Article 4:37, paragraph
1 and 2, are complied with.
Article 2:62 Exemptions for financial enterprises from another Member
State
Article 2:60, paragraph 1, does not apply to financial enterprises having
their seat in another Member State which:
a. conduct the business of a bank from a branch office
situated in the Netherlands or by means of providing services to the Netherlands,
insofar as it is permitted for them pursuant to Section 2.2.2 to offer
credit;
b. conduct the business of a financial institution from
a branch office situated in the Netherlands or by means of providing services
to the Netherlands, insofar as it is permitted for them pursuant to Section
2.2.2 to offer credit;
c. conduct the business of an entity for risk acceptance
or insurer from a branch office situated in the Netherlands or by means
of providing services to the Netherlands, insofar as it is permitted for
them pursuant to Sections 2.2.2A, 2.2.3, 2.2.4 or 2.2.4A to offer credit.
Article 2:63 Statutory provisions to be met
- 1. Upon application, the Authority for the Financial
Markets shall grant a license as referred to in Article 2:60, paragraph
1, if the applicant shows that he will comply with the provisions arising
from:
a. Article 4:9, paragraph 1 up to and including 3, with
regard to the proper credentials and professional skills of the persons
referred to in that Article;
b. Article 4:10 with regard to the reliability of the
persons referred to in that Article;
c. Article 4:11, paragraph 2 and 3, with regard to the
policy on the sound conduct of business;
d. Article 4:13 with regard to the control structure,
and;
e. Article 4:15, paragraph 1 and 2, with regard to the
operational structure.
- 2. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Authority for the Financial
Markets may grant a full or partial dispensation from the provisions referred
to in paragraph 1, opening words and under (a), with regard to Article
4:9, paragraph 2 and 3, or under (c), with regard to Article 4:11, paragraph
3, or under (e), with regard to Article 4:15, paragraph 2, if the applicant
shows that he reasonably cannot comply with those provisions and that
the objectives which the Articles listed in paragraph 1 seek to achieve
are reached otherwise.
§ 2.2.6.2 Exemption
Article 2:64 Exemptions by Ministerial Regulation
- 1. An exemption from Article 2:60, paragraph 1, may
be granted by Ministerial Regulation.
- 2. A full or partial exemption from Article 2:63, paragraph
1, may be granted by Ministerial Regulation.
Section 2.2.7 Offering units in collective investment schemes
§ 2.2.7.1 Requirements for licensing
Article 2:65 License for offering units in collective investment schemes
- 1. It is prohibited to offer units in a collective
investment scheme in the Netherlands:
a. if the management company of the collective investment
scheme does not have a license granted by the Authority for the Financial
Markets to manage collective investment schemes, or;
b. if it concerns an investment company without a separate
management company, while the investment company does not have a license
granted by the Authority for the Financial Markets.
- 2. Without prejudice to paragraph 1, opening words
and under (a), it is prohibited to offer in the Netherlands units in an
institution for collective investments in transferable securities that
is an investment company, while the management company does not have a
license granted by the Authority for the Financial Markets in respect
of that investment company.
- 3. Upon application, the Authority for the Financial
Markets may, whether or not for a specified period of time, grant a full
or partial dispensation from paragraph 1 and from what is provided in
Part IV ‘Conduct Supervision Financial Enterprises’ in respect
of the offering of units in collective investment schemes, if the applicant
shows that the interests which the present Part and Part IV ‘Conduct
Supervision Financial Enterprises’, seek to protect are sufficiently
protected otherwise.
- 4. Paragraph 3 does not apply to the offering of units
in institutions for collective investments in transferable securities.
Article 2:66 Units in a collective investment scheme from a designated
State
- 1. Article 2:65, paragraph 1, does not apply to the
offering of units in a collective investment scheme having its seat in
a State to be designated by the Minister in which the supervision over
collective investment schemes provides sufficient safeguards with respect
to the interests which the present Act seeks to protect, provided that
Article 2:73 is complied with. Further rules may be set by Order n Council
in respect of the designation of States. The Minister may revoke the designation
decision.
- 2. A decision on the designation of a State as referred
to in paragraph 1 and the revocation of such a decision n shall be made
public in the Government Gazette (‘Staatscourant’).
- 3. Article 2:65, paragraph 1 and 2, does not apply
to the offering units in an institution for collective investment in transferable
securities having its seat in another Member State, provided that Article
93 of the UCITS Directive has been complied with and the management company
or institution in collective investments in transferable securities having
its seat in another Member State, has received a notification as meant
in Article 93, paragraph 3, of the UCITS Directive.
Article 2:67 Statutory provisions to be met for a management company
- 1. Upon application, the Authority for the Financial
Markets shall grant a license as referred to in Article 2:65, paragraph
1, opening words and under (a), if the applicant shows that, with regard
to the management company and, where applicable, the depositaries associated
with the collective investment schemes which the management company intends
to manage, he will comply with the provisions arising from:
a. Article 4:9, paragraph 1, with regard to the proper
credentials of the persons referred to in that Article;
b. Article 4:10 with regard to the reliability of the
persons referred to in that Article;
c. Article 4:11, paragraph 1 and 3, with regard to the
policy on the sound conduct of business;
d. Article 4:13 with regard to the control structure;
e. Article 4:14, paragraph 1 and 2, with regard to the
operational structure;
f. Article 4:39 with regard to the minimum number of
persons laying down the day-to-day policy, and Article 4:40 with regard
to determining the place from which they perform their activities;
g. Article 4:42 with regard to the measures taken by
the management company to protect the rights of unit holders;
h. Article 4:43 with regard to the contracts to be concluded
between the management company and the depositaries;
i. Article 4:44, paragraph 1, with regard to the legal
type of the person and the objective of the depositaries according to
their articles of incorporation;
j. Article 4:44, paragraph 2, with regard to the safekeeping
of the assets of a common fund by a depositary that acts as depositary
exclusively for the common fund concerned;
k. Article 4:48 with regard to the registration document
referred to in that Article;
l. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital, and;
m. Article 3:63, paragraph 1 and 2, with regard to liquidity.
- 2. An applicant for a license as referred to in paragraph
who has the intention to manage institutions for collective investments
in transferable securities shall, in addition to paragraph 1, show as
well that he will comply with the provisions arising from:
a. Article 4:43 with regard to the contracts to be concluded
between the management company and depositaries;
b. Article 4:56 with regard to the safekeeping of the
assets by depositaries;
c. Article 4:57, paragraph 1, with regard to the seat
of the depositaries;
d. Article 4:59, paragraph 1, with regard to the seat
of the management company;
e. Article 4:59, paragraph 2, with regard to the activities
of the management company’;
f. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital;
g. Article 3:57, paragraph 1 and 2, with regard to solvency,
and;
h. Article 3:63, paragraph 1 and 2, with regard to liquidity.
- 3. If a qualified shareholder’s participation
as referred to in Article 3:95 is held in the management company, the
Authority for the Financial Markets shall grant, without prejudice to
paragraph 1 and 2, a license if the holder of the qualified shareholder’s
participation in the management company complies with Article 3:95, paragraph
2, and the Dutch Central Bank is of the opinion that the provisions arising
from Articles 3:99 up to and including 3:101 with respect to the declaration
of no objection are complied with.
- 4. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 5. Upon application, the Authority for the Financial
Markets may grant a full or partial dispensation from the provisions referred
to in paragraph 1, opening words and under (c), with regard to Article
4:11, paragraph 3, or under (e), with regard to Article 4:14, paragraph
2, or under (j), (l) or (m), if the applicant shows that he reasonably
cannot comply with those provisions and that the objectives which the
Articles listed in paragraph 1 seek to achieve are reached otherwise.
Article 2:68 Statutory provisions to be met for an investment company
- 1. Upon application, the Authority for the Financial
Markets shall grant a license as referred to in Article 2:65, paragraph
1, opening words and under (b) if the applicant shows that, with regard
to the investment company and, where applicable, the depositary associated
with that investment company, he will comply with the provisions arising
from:
a. Article 4:9, paragraph 1, with regard to the proper
credentials of the persons referred to in that Article;
b. Article 4:10 with regard to the reliability of the
persons referred to in that Article;
c. Article 4:11, paragraph 1 and 3, with regard to the
policy on the sound conduct of business;
d. Article 4:13 with regard to the control structure;
e. Article 4:14, paragraph 1 and 2, with regard to the
operational structure;
f. Article 4:39 with regard to the minimum number of
persons laying down the day-to-day policy, and Article 4:40 with regard
to determining the place from which they perform their activities;
g. Article 4:43 with regard to the contract to be concluded
between the investment company and the depositary;
h. Article 4:44, paragraph 1, with regard to the legal
type of the person and the objective of the depositary according to its
articles of incorporation;
i. Article 4:48 with regard to the registration document
referred to in that Article;
j. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital, and;
k. Article 3:63, paragraph 1 and 2, with regard to liquidity.
- 2. An applicant for a license as referred to in paragraph
1 in respect of an institution for collective investment in transferable
securities shall, in addition to paragraph 1, show as well that with regard
to the investment company and, where applicable, the depositary associated
with that investment company, he will comply with the provisions arising
from:
a. Article 4:43 with regard to the contract to be concluded
between the investment company and the depositary;
b. Article 4:56 with regard to the safekeeping of the
assets by a depositary;
c. Article 4:57 with regard to the seat of the depositary;
d. Article 4:60, paragraph 1, with regard to the objective
of the investment company according to its articles of incorporation;
e. Article 4:60, paragraph 2, with regard to the unrestricted
offering of units in the Netherlands and the repurchase of or repayment
on those units at the request of a unit holder;
f. Article 4:60, paragraph 3, with regard to the seat
of the investment company;
g. Article 4:60, paragraph 4, with regard to the activities
of the investment company;
h. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital, and;
i. Article 3:63, paragraph 1 and 2, with regard to liquidity.
- 3. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 4. Upon application, the Authority for the Financial
Markets may grant a full or partial dispensation from the provisions referred
to in paragraph 1, opening words and under (c), with regard to Article
4:11, paragraph 3, or under (e), with regard to Article 4:14, paragraph
2, or under (j), or (k), if the applicant shows that he reasonably cannot
comply with those provisions and that the objectives which the Articles
listed in paragraph 1 seek to achieve are reached otherwise.
Article 2:69 Statutory provisions to be met to offer units in an institution
for collective investments in transferable securities
- 1. Upon application, the Authority for the Financial
Markets shall grant a license as referred to in Article 2:65, paragraph
2, if the applicant shows that, with regard to the investment company
and, where applicable, the depositary associated with that investment
company, he will comply with the provisions arising from:
a. Article 4:13 with regard to the control structure;
b. Article 4:40 with regard to the place from which the
persons laying down the day-to-day policy of the investment company perform
their activities;
c. Article 4:44, paragraph 1, with regard to the legal
type of the person and the objective of the depositary according to its
articles of incorporation;
d. Article 4:56 with regard to the safekeeping of the
assets by the depositary;
e. Article 4:57 , paragraph 1, with regard to the seat
of the depositary;
f. Article 4:60, paragraph 1, with regard to the objective
of the investment company according to its articles of incorporation;
g. Article 4:60, paragraph 2, with regard to the unrestricted
offering of units in the Netherlands and the repurchase of or repayment
on those units at the request of a unit holder, and;
h. Article 4:60, paragraph 3, with regard to the activities
of the investment company.
- 2. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
Article 2:69a Statutory provisions to be met for a supervisory status
certificate
- 1. Upon application, the Authority for the Financial
Markets may grant a supervisory status certificate to:
a. the management company of a collective investment
scheme of which the units are offered in the Netherlands exclusively to
qualified investors;
b. an investment company without a separate management
company that offers units in the Netherlands exclusively to qualified
investors.
- 2. Paragraph 1 does not apply to collective investments
schemes:
a. that are a starter’s fund as meant in Article
4.1 of the Subsidy Regulation Starting, Growing and Transferring of Enterprises;
b. of which;
1° the total of the balance consists for less than 50 percent of investments,
and;
2° less than 50 percent of the total realised proceeds are generated
from investments, or;
c. that offer units to their Directors, members of the
Supervisory Board or their employees or to Directors, members of the Supervisory
Board or employees of a cooperation or institution affiliated in a formal
or actual control structure with those collective investment schemes.
- 3. Upon application, the Authority for the Financial
Markets shall grant a supervisory status certificate to a management company
as referred to in paragraph 1, under (a), if the applicant shows, with
regard to the management company and, where applicable, the management
company that is associated with the collective investment scheme which
the management company intends to manage, that he will comply with the
provisions arising from:
a. Article 4:9, paragraph 1, with regard to the proper
credentials of the persons meant in that Article;
b. Article 4:10 with regard to the reliability of the
persons meant in that Article;
c. Article 4:11, paragraph 1, with regard to the policy
on the sound conduct of business;
d. Article 4:13 with regard to the control structure;
e. Article 4:14, paragraph 1, with regard to the operational
structure;
f. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital;
g. Article 3:63 , paragraph 1 and 2, with regard to liquidity.
- 4. If the application concerns the offering of units
in a collective investment scheme to which, at the moment on which the
application was lodged, Article 1:12, paragraph 1, opening words and under
(b), is applicable, the applicant shall submit, when lodging the application,
the following data:
a. his name and address;
b. the name and address of the collective investment
scheme;
c. the names of the persons who lay down or also lay
down the policy of the collective investment scheme, and the names of
the persons forming a part of a body that is charged with exercising supervision
over the policy and general state of affairs of the collective investment
scheme;
d. the name and address of a possible depository associated
with the collective investment scheme;
e. the manner of buying and selling units;
f. a description of the investment policy of the collective
investment scheme, and;
g. where applicable, the regulated market to which the
units are admitted for trading.
- 5. Upon application, the Authority for the Financial
Markets shall grant a supervisory status certificate to an investment
company as meant in paragraph 1, under (b), if the applicant shows, with
regard to the investment company and, where applicable, with regard to
a depository associated with that investment company, that he will comply
with the provisions arising from:
a. Article 4:9, paragraph 1, with regard to the proper
credentials of the persons meant in that Article;
b. Article 4:10 with regard to the reliability of the
persons meant in that Article;
c. Article 4:11, paragraph 1, with regard to the policy
on the sound conduct of business;
d. Article 4:13 with regard to the control structure;
e. Article 4:14, paragraph 1, with regard to the operational
structure;
f. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital;
g. Article 3:63 , paragraph 1 and 2, with regard to liquidity.
- 6. The application for a supervisory status certificate
shall be submitted with mention of the data which are to be specified
by or pursuant to Order in Council.
Article 2:69b License including as well a supervisory status certificate
A management company which possesses a license as meant in Article 2:65,
paragraph 1, under (a), and that has notified the Authority for the Financial
Markets of its intention to offer units in a collective investment scheme
in the Netherlands exclusively to qualified investors, shall possess,
for this purpose, by operation of law a supervisory status certificate
as meant in Article 2:69a, paragraph 1, under (a). Article 2:69a, paragraph
4, shall apply accordingly.
§ 2.2.7.2 Branch office and provision of services
Article 2:70 [repealed on 22-07-2011]
Article 2:71 Management company from another Member State
- 1. A management company having its seat in another
Member State may, where this is done for the first time, start offering
units in an institution for collective investments in transferable securities
having its seat in the Netherlands or start offering units in an institution
for collective investments in transferable securities having its seat
in another Member State which is managed by it:
a. immediately after receipt of the notification made
for this purpose by the Authority for the Financial Markets, or;
b. two months after receipt of a notification of the
supervisory authority of the other Member State which has send on the
notification of the intention to the Authority for the Financial Markets.
- 2. Paragraph 1 does not apply to management companies
that have complied with Article 2:101, paragraph 1.
Article 2:72 Statutory provisions to be met
- 1. Without prejudice to Articles 2:65, paragraph 1,
opening words and under (a), or paragraph 2, 2:67, paragraph 2, and 2:69,
in regard of an application for a license for an institution for collective
investments in transferable securities, a management company having its
seat in another Member State that has the intention to manage an institution
for collective investments in transferable securities having its seat
in the Netherlands, shall only proceed in doing so after the Authority
for the Financial Markets has consented with that intention.
- 2. The application for such consent shall be submitted
together with:
a. the contract concluded with the depository in respect
of the management and the depository meant in Articles 23, paragraph 5,
and 33, paragraph 5, of the UCITS Directive, and;
b. the arrangements made with regard to the outsourcing
of work as meant in Annex II of the UCITS Directive.
- 3. If the management company referred to in paragraph
1, already manages a similar type of institution for collective investments
in transferable securities having its seat in the Netherlands, then a
reference to the already submitted data shall be sufficient.
- 4. After the Authority for the Financial Markets has
received the data meant in paragraph 2, it shall give its consent to an
intention as referred to in paragraph 1, unless:
a. the management company has no license to manage the
relevant institution for collective investments in transferable securities,
or;
b. the management company or the institution for collective
investments in negotiable security is not able to comply with what is
provided in Part IV ‘Conduct Supervision Financial Enterprises’.
Article 2:73 Collective investment scheme from a designated State
- 1. A collective investment scheme having its seat in
a designated State as referred to in Article 2:66, paragraph 1, that has
the intention to offer units in the Netherlands shall notify the Authority
for the Financial Markets of this intention and shall simultaneously submit
a supervisory status certificate issued by the supervisory authority of
that designated State.
- 2. Eight weeks after the notification referred to in
paragraph 1, the collective investment scheme may start offering units
in the Netherlands, unless the Authority for the Financial Markets has
announced before the expiry of those eight weeks that the intention or
the intended trading method is not in conformity with applicable Dutch
statutory provisions.
§ 2.2.7.3 Exemption
Article 2:74 Exemptions by Ministerial Regulation
- 1. An exemption from Article 2:65, paragraph 1, may
be granted by Ministerial Regulation, on the understanding that exempted
are in any event those persons who offer units in a collective investment
scheme:
a. as far as those units can be obtained only against
a counter value of at least € 100,000 per unit holder, or;
b. as far as those units have a nominal value of at least
€ 100,000 per unit.
- 2. If an exemption as meant in paragraph 1 is granted
under the condition that, in the event of an offer or in advertisements
or documents mentioning the prospect of an offer, it has to be announced
that the exempted activity is not subjected to any license, then such
announcement shall be made in a way as to be determined by the Authority
for the Financial Markets.
Section 2.2.8 Performing advisory services in respect of
financial products other than financial instruments
§ 2.2.8.1 Requirements for licensing
Article 2:75 License for performing financial advisory services
- 1. It is prohibited to perform advisory services in
the Netherlands in respect of financial products other than financial
instruments without a license granted for that purpose by the Authority
for the Financial Markets.
- 2. Upon application, the Authority for the Financial
Markets may, whether or not for a specific period of time, grant a dispensation
from paragraph 1 and from what is provided in Part IV ‘Conduct Supervision
Financial Enterprises’ in regard of the performance of advisory
services in respect of financial products other than financial instruments,
if the applicant shows that the interests which the present Part and Part
4 ‘Conduct Supervision Financial Enterprises’, seek to protect
are sufficiently protected otherwise.
Article 2:76 Exemptions
- 1. Article 2:75, paragraph 1, does not apply to financial
enterprises which:
a. have a license for conducting the business of an insurer,
granted by the Dutch Central Bank on the basis of the present Part, insofar
as it is permitted for them pursuant to that license to perform advisory
services;
b. have a supervisory status certificate for conducting
the business of a financial institution, issued by the Dutch Central Bank
on the basis of Part III ‘Prudential Supervision Financial Enterprises’,
insofar as it is permitted for them pursuant to that certificate to perform
advisory services;
c. have a license for conducting the business of a bank,
granted by the Dutch Central Bank on the basis of the present Part;
d. have a license for conducting the business of an electronic
money institution, granted by the Dutch Central Bank on the basis of the
present Part, insofar as it is permitted for them pursuant to that license
to perform advisory services;
e. have a license for conducting the business of a premium
pension institution, granted by the Dutch Central Bank on the basis of
the present Part, insofar as it is permitted for them pursuant to that
license to perform advisory services, or;
f. have a license for conducting the business of a payment
institution, granted by the Dutch Central Bank on the basis of the present
Part, insofar as it is permitted for them pursuant to that license to
perform advisory services.
- 2. Article 2:75, paragraph 1, does not apply to financial
enterprises which have a license, granted by the Authority for the Financial
Markets on the basis of the present Part, to perform other financial services
than advisory services as meant in the present Part, insofar as it concerns
advice on a financial product covered by that license.
- 3. Article 2:75, paragraph 1, does not apply to municipal
credit banks in regard of which the provisions of Article 4:37, paragraph
1, have been complied with, insofar as it concerns advice on the credit
offered by the municipal credit bank itself.
- 4. Article 2:75, paragraph 1, does not apply to intermediaries
as referred to in Article 2:81, paragraph 1, insofar as it concerns advice
on financial products for which they act as tied intermediaries.
- 5. Article 2:75, paragraph 1, does not apply to intermediaries
possessing a dispensation as referred to in Article 2:80, paragraph 2,
insofar as it concerns advice on a financial product covered by that dispensation.
Article 2:77 Exemptions for financial enterprises from another Member
State
- 1. Article 2:75, paragraph 1, does not apply to financial
enterprises having their seat in another Member State that:
a. conduct the business of a bank from a branch office
situated in the Netherlands or by means of providing services to the Netherlands,
insofar as it is permitted for them pursuant to Section 2.2.2 to perform
advisory services;
b. conduct the business of a financial institution from
a branch office situated in the Netherlands or by means of providing services
to the Netherlands, insofar as it is permitted for them pursuant to Section
2.2.2 to perform advisory services;
c. conduct the business of an entity for risk acceptance
or insurer from a branch office situated in the Netherlands or by means
of providing services to the Netherlands, insofar as it is permitted for
them pursuant to Sections 2.2.2A, 2.2.3, 2.2.4 or 2.2.4A to perform advisory
services;
d. conduct the business of an electronic money institution
from a branch office situated in the Netherlands or by means of providing
services to the Netherlands, insofar as it is permitted for them pursuant
to Section 2.2.2 to perform advisory services, or;
e. conduct the business of a payment service provider
from a branch office situated in the Netherlands or by means of providing
services to the Netherlands, insofar as it is permitted for them pursuant
to Section 2.2.2 to perform advisory services.
- 2. Article 2:75, paragraph 2, does not apply to insurance
brokers or reinsurance brokers that are registered in another Member State
within the meaning of Article 3 of the Insurance Brokerage Directive and
that are permitted under Article 3, paragraph 5, of that Directive, to
provide their financial services in the Netherlands, insofar as Article
2:84, paragraph 2 or, respectively, Article 2:90, paragraph 2, have been
complied with.
Article 2:78 Statutory provisions to be met
- 1. Upon application, the Authority for the Financial
Markets shall grant a license as referred to in Article 2:75, paragraph
1, if the applicant shows that he will comply with the provisions arising
from:
a. Article 4:9, paragraph 1 up to and including 3, with
regard to the proper credentials and professional skills of the persons
referred to in that Article;
b. Article 4:10 with regard to the reliability of the
persons referred to in that Article;
c. Article 4:11, paragraph 2 and 3, with regard to the
policy on the sound conduct of business;
d. Article 4:13 with regard to the control structure,
and;
e. Article 4:15, paragraph 1 and 2, with regard to the
operational structure.
- 2. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Authority for the Financial
Markets may grant a full or partial dispensation from the provisions referred
to in paragraph 1, opening words and under (a), with regard to Article
4:9, paragraph 2 and 3, or under (c), with regard to Article 4:11, paragraph
3, or under (e), with regard to Article 4:15, paragraph 2, if the applicant
shows that he reasonably cannot comply with those provisions and that
the objectives which the Articles listed in paragraph 1 seek to achieve
are reached otherwise.
§ 2.2.8.2 Exemption
Article 2:79 Exemptions by Ministerial Regulation
- 1. An exemption from Article 2:75, paragraph 1, may
be granted by Ministerial Regulation.
- 2. A full or partial exemption from Article 2:78, paragraph
1, may be granted by Ministerial Regulation.
- 3. If an exemption as meant in paragraph 1 is granted
under the condition that in advertisements and other non-mandatory pre-contractual
information it has to be announced that the exempted activity is not subjected
to any license under the present Act, then such announcement shall be
made in a way as to be determined by the Authority for the Financial Markets.
Section 2.2.9 Performing brokerage services
§ 2.2.9.1 Requirements for licensing
Article 2:80 License for performing brokerage services
- 1. It is prohibited to perform brokerage services in
the Netherlands without a license granted for that purpose by the Authority
for the Financial Markets.
- 2. Upon application, the Authority for the Financial
Markets may, whether or not for a specific period of time, grant a dispensation
from paragraph 1 and from what is provided in Part IV ‘Conduct Supervision
Financial Enterprises’ in regard of brokerage services, if the applicant
shows that the interests which the present Part and Part IV ‘Conduct
Supervision Financial Enterprises’ seek to protect are sufficiently
protected otherwise.
- 3. Upon application, the Authority for the Financial
Markets may grant a dispensation from paragraph 1 to:
a. a person who ran a joint household on a long-term
basis with a deceased broker until the latter’s death, or;
b. a child of a deceased broker not forming part of the
household,
if the business of the deceased broker is continued and the interests
which the present Part and Part IV ‘Conduct Supervision Financial
Enterprises’ seek to protect are sufficiently protected otherwise.
- 4. The dispensation referred to in paragraph 3 may
be granted with retroactive effect to the date of death. The dispensation
shall be granted for no more than one year and may be extended no more
than twice by a period of one year.
- 5. Paragraph 1 does not apply to insurance brokerage
services.
Article 2:81 Exemptions
- 1. Article 2:80, paragraph 1, does not apply to financial
enterprises which:
a. have a license, issued by the Dutch Central Bank on
the basis of the present Part, to conduct the business of an insurer,
insofar as it is permitted for them pursuant to that license to perform
brokerage services;
b. have a supervisory status certificate, issued by the
Dutch Central Bank on the basis of Part III ‘Prudential Supervision
Financial Enterprises’, to conduct the business of a financial institution,
insofar as it is permitted for them pursuant to that certificate to perform
brokerage services;
c. have a license, granted by the Dutch Central Bank
on the basis of the present Part, to conduct the business of a bank, or;
d. have a license, granted by the Dutch Central Bank
on the basis of the present Part, to conduct the business of a premium
pension institution, insofar as it is permitted for them pursuant to that
license to perform brokerage services..
- 2. Article 2:80, paragraph 1, does not apply to brokerage
services performed by brokers (intermediaries) that perform brokerage
services for an offeror, or, where it does not concern mutually competitive
financial products, for various offerors and that, where it concerns the
provision of insurance brokerage services, perform these services in the
name and for account of the offeror or offerors without thereby collecting
premiums or amounts intended for the client, if the offerors for which
the brokers (intermediaries) provide brokerage services:
a. are fully responsible for the brokers (intermediaries),
in the sense that they ensure that the brokers (intermediaries) comply
with the present Act, and;
b. have reported the broker (intermediaries) concerned
as tied brokers (intermediaries) to the Authority for the Financial Markets.
- 3. An offeror who is no longer responsible for a broker
as referred to in paragraph 2, under a, shall notify the Authority for
the Financial Markets and the broker concerned thereof.
- 4. Rules shall be set by or pursuant to Order in Council
in regard of the manner in which the broker will be reported as referred
to in paragraph 2, under (b), and the data to be provided and documents
to be submitted on that occasion.
Article 2:82 Exemptions for financial enterprises from another Member
State
- 1. Article 2:80, paragraph 1, does not apply to financial
enterprises having their seat in another Member State which:
a. conduct the business of a bank from a branch office
situated in the Netherlands or by means of providing services to the Netherlands,
insofar as it is permitted for them pursuant to Section 2.2.2 to perform
brokerage services;
b. conduct the business of a financial institution from
a branch office situated in the Netherlands or by means of providing services
to the Netherlands, insofar as it is permitted for them pursuant to Section
2.2.2 to perform brokerage services, or;
c. conduct the business of an entity for risk acceptance
or insurer from a branch office situated in the Netherlands or by means
of providing services to the Netherlands, insofar as it is permitted for
them pursuant to Sections 2.2.2A, 2.2.3, 2.2.4 or 2.2.4A to perform brokerage
services.
- 2. Article 2:80, paragraph 1, does not apply to insurance
brokers registered in another Member State within the meaning of Article
3 of the Insurance Brokerage Directive, insofar as Article 2:84, paragraph
2, has been complied with.
Article 2:83 Statutory provisions to be met
- 1. Upon application, the Authority for the Financial
Markets shall grant a license as referred to in Article 2:80, paragraph
1, if the applicant shows that he will comply with the provisions arising
from:
a. Article 4:9, paragraph 1 up to and including 3, with
regard to the proper credentials and professional skills of the persons
referred to in that Article;
b. Article 4:10 with regard to the reliability of the
persons referred to in that Article;
c. Article 4:11, paragraph 2 and 3, with regard to the
policy on the sound conduct of business;
d. Article 4:13 with regard to the control structure;
e. Article 4:15, paragraph 1 and 2, with regard to the
operational structure, and;
f. where it concerns the provision of insurance brokerage
services, Article 4:75, paragraph 1 up to and including 3, with regard
to having a professional liability insurance or comparable insurance.
- 2. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Authority for the Financial
Markets may grant a full or partial dispensation from the provisions referred
to in paragraph 1, opening words and under (a), with regard to Article
4:9, paragraph 2 and 3, or under (c), with regard to Article 4:11, paragraph
3, or under (e), with regard to Article 4:15, paragraph 2, or under (f),
with regard to Article 4:75, paragraph 2, if the applicant shows that
he reasonably cannot comply with those provisions and that the objectives
which the Articles listed in paragraph 1 seek to achieve are reached otherwise.
§ 2.2.9.2 Branch office and provision of services
Article 2:84 Insurance broker from another Member State
- 1. If the Authority for the Financial Markets receives
a notification from a supervisory authority of another Member State in
respect of an insurance broker having his seat in that other Member State
who provides insurance brokerage services from a branch office situated
in the Netherlands or by means of providing services to the Netherlands,
the supervisor may announce within one month after receipt of such notification
the conditions which the broker must observe for reasons of public interest
in performing his financial services in the Netherlands. The Authority
for the Financial Markets shall send a copy thereof to the broker
- 2. One month after the Authority for the Financial
Markets received the notification meant in paragraph 1 from the supervisory
authority of the other Member State, the insurance broker having his seat
in another Member State may start performing services from a branch office
situated in the Netherlands or by means of providing services to the Netherlands.
§ 2.2.9.3 Exemption
Article 2:85 Exemptions by Ministerial Regulation
- 1. An exemption from Article 2:80, paragraph 1, may
be granted by Ministerial Regulation.
- 2. A full or partial exemption from Article 2:83, paragraph
1, may be granted by Ministerial Regulation
- 3. If an exemption as meant in paragraph 1 is granted
under the condition that in advertisements and other non-mandatory pre-contractual
information it has to be announced that the exempted activity is not subjected
to any license under the present Act, then such announcement shall be
made in a way as to be determined by the Authority for the Financial Markets.
Section 2.2.10 Performing reinsurance brokerage services
§ 2.2.10.1 Requirements for licensing
Article 2:86 License for performing reinsurance brokerage services
- 1. It is prohibited to perform reinsurance brokerage
services in the Netherlands without a license granted for that purpose
by the Authority for the Financial Markets.
- 2. Upon application, the Authority for the Financial
Markets may, whether or not for a specific period of time, grant a dispensation
from paragraph 1 if the applicant shows that the interests which the present
Part and Part IV ‘Conduct Supervision Financial Enterprises’
seek to protect are sufficiently protected otherwise.
Article 2:87 Exemptions
Article 2:86, paragraph 1, does not apply to financial enterprises which:
a. have a license, granted by the Dutch Central Bank
on the basis of the present Part, to conduct the business of an insurer,
insofar as it is permitted for them pursuant to that license to perform
reinsurance brokerage services;
b. have a supervisory status certificate, issued by the
Dutch Central Bank on the basis of Part III ‘Prudential Supervision
Financial Enterprises’, to conduct the business of a financial institution,
insofar as it is permitted for them pursuant to that certificate to perform
reinsurance brokerage services, or;
c. have a license, granted by the Dutch Central Bank
on the basis of the present Part, to conduct the business of a bank.
Article 2:88 Exemptions for registered reinsurance brokers from another
Member State
Article 2:86, paragraph 1, does not apply to reinsurance brokers that
are registered in another Member State within the meaning of Article 3
of the Insurance Brokerage Directive, insofar as Article 2:90, paragraph
2, has been complied with.
Article 2:89 Statutory provisions to be met
- 1. Upon application, the Authority for the Financial
Markets shall grant a license as referred to in Article 2:86, paragraph
1, if the applicant shows that he will comply with the provisions arising
from:
a. Article 4:9, paragraph 1 up to and including 3, with
regard to the proper credentials and professional skills of the persons
referred to in that Article;
b. Article 4:10 with regard to the reliability of the
persons referred to in that Article;
c. Article 4:11, paragraph 2 and 3, with regard to the
policy on the sound conduct of business;
d. Article 4:13 with regard to the control structure;
e. Article 4:15, paragraph 1 and 2, with regard to the
operational structure, and;
f. Article 4:76, paragraph 1 up to and including 4, with
regard to having a professional liability insurance or comparable insurance.
- 2. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Authority for the Financial
Markets may grant a full or partial dispensation from the provisions referred
to in paragraph 1, opening words and under (a), with regard to Article
4:9, paragraph 2 and 3, or under (c), with regard to Article 4:11, paragraph
3, or under (e), with regard to Article 4:15, paragraph 2, or under (f),
with regard to Article 4:76, paragraph 2, if the applicant shows that
he reasonably cannot comply with those provisions and that the objectives
which the Articles listed in paragraph 1 seek to achieve are reached otherwise.
§ 2.2.10.2 Branch office and provision of services
Article 2:90 Conditions to be observed by a licensed reinsurance broker
from another Member State
- 1. If the Authority for the Financial Markets receives
a notification from a supervisory authority of another Member State in
respect of a reinsurance broker having his seat in that other Member State
who provides reinsurance brokerage services from a branch office situated
in the Netherlands or by means of providing services to the Netherlands,
the supervisor may announce within one month after receipt of such notification
the conditions which the reinsurance broker must observe for reasons of
public interest in performing his financial services in the Netherlands.
The Authority for the Financial Markets shall send a copy thereof to the
reinsurance broker
- 2. One month after the Authority for the Financial
Markets received the notification meant in paragraph 1 from the supervisory
authority of the other Member State, the reinsurance broker having his
seat in another Member State may start performing services from a branch
office situated in the Netherlands or by means of providing services to
the Netherlands.
§ 2.2.10.3 Exemption
Article 2:91 Exemptions by Ministerial Regulation
- 1. An exemption from Article 2:86, paragraph 1, may
be granted by Ministerial Regulation.
- 2. A full or partial exemption from Article 2:89, paragraph
1, may be granted by Ministerial Regulation.
Section 2.2.11 Acting as authorised agent or authorised
sub-agent
§ 2.2.11.1 Requirements for licensing
Article 2:92 License for acting as an authorised (sub-)agent
- 1. It is prohibited to act as an authorised agent or
authorised sub-agent in the Netherlands without a license granted for
that purpose by the Authority for the Financial Markets.
- 2. Upon application, the Authority for the Financial
Markets may, whether or not for a specific period of time, grant a dispensation
from paragraph 1 if the applicant shows that the interests which the present
Part and Part IV ‘Conduct Supervision Financial Enterprises’
seek to protect are sufficiently protected otherwise.
Article 2:93 Exemptions
Article 2:92, paragraph 1, does not apply to financial enterprises which:
a. have a license, issued by the Dutch Central Bank on
the basis of the present Part, to conduct the business of an insurer,
insofar as it is permitted for them pursuant to that license to act as
an authorised agent or authorised sub-agent;
b. have a supervisory status certificate, issued by the
Dutch Central Bank on the basis of Part III ‘Prudential Supervision
Financial Enterprises’, to conduct the business of a financial institution,
insofar as it is permitted for them pursuant to that certificate to act
as an authorised agent or authorised sub-agent;
c. have a license, granted by the Dutch Central Bank
on the basis of the present Part, to conduct the business of a bank, or;
d. have a license, granted by the Dutch Central Bank
on the basis of the present Part, to conduct the business of a premium
pension institution, insofar as it is permitted for them pursuant to that
license to act as an authorised agent or authorised sub-agent.
Article 2:93a Exemptions for registered reinsurance brokers from another
Member State
Article 2:92, paragraph 1, does not apply to insurance brokers who are
registered in another Member State within the meaning of Article 3 of
the Insurance Brokerage Directive insofar as Article 2:94a has been complied
with.
Article 2:94 Statutory provisions to be met
- 1. Upon application, the Authority for the Financial
Markets shall grant a license as referred to in Article 2:92, paragraph
1, if the applicant shows that he will comply with the provisions arising
from:
a. Article 4:9, paragraph 1 up to and including 3, with
regard to the proper credentials and professional skills of the persons
referred to in that Article;
b. Article 4:10 with regard to the reliability of the
persons referred to in that Article;
c. Article 4:11, paragraph 2 and 3, with regard to the
policy on the sound conduct of business;
d. Article 4:13, paragraph 1 and 2, with regard to the
control structure, and;
e. Article 4:15, paragraph 1 and 2, with regard to the
operational structure.
- 2. The application for the license shall be submitted
with mention of the data which are to be specified by or pursuant to Order
in Council.
- 3. Upon application, the Authority for the Financial
Markets may grant a full or partial dispensation from the provisions referred
to in Paragraph 1, opening words and under (a), with regard to Article
4:9, paragraph 2 and 3, or under (c), with regard to Article 4:11, paragraph
3, or under (e), with regard to Article 4:15, paragraph 2, if the applicant
shows that he reasonably cannot comply with those provisions and that
the objectives which the Articles listed in paragraph 1 seek to achieve
are reached otherwise.
§ 2.2.11.1A. Branch office and provision of services
Article 2:94a Conditions to be observed by a licensed reinsurance broker
from another Member State
- 1. If the Authority for the Financial Markets receives
a notification from a supervisory authority of another Member State in
respect of an insurance broker having his seat in that other Member State
who provides insurance brokerage services from a branch office situated
in the Netherlands or by means of providing services to the Netherlands,
the supervisor may announce within one month after receipt of such notification
the conditions which the reinsurance broker must observe for reasons of
public interest in performing his financial services in the Netherlands.
- 2. One month after the Authority for the Financial
Markets received the notification meant in paragraph 1 from the supervisory
authority of the other Member State, the insurance broker having his seat
in another Member State may start performing services from a branch office
situated in the Netherlands or by means of providing services to the Netherlands.
§ 2.2.11.2 Exemption
Article 2:95 Exemptions by Ministerial Regulation
- 1. An exemption from Article 2:92, paragraph 1, may
be granted by Ministerial Regulation.
- 2. A full or partial exemption from Article 2:94, paragraph
1, may be granted by Ministerial Regulation.
Section 2.2.12 Providing investment services, performing
investment activities and systematic internalisation
§ 2.2.12.1 Requirements for licensing
Article 2:96 License for performing investment services or activities
- 1. It is prohibited to provide investment services
or perform investment activities without a license granted for that purpose
by the Authority for the Financial Markets.
- 2. Upon application, the Authority for the Financial
Markets may, whether or not for a specific period of time, grant a full
or partial dispensation from paragraph 1 if the applicant shows that the
interests which the present Part, Part III ‘Prudential Supervision
Financial Enterprises’ and Part IV ‘Conduct Supervision Financial
Enterprises’ seek to protect are sufficiently protected otherwise.
Article 2:97 Exemptions
- 1. Article 2:96 does not apply to financial enterprises
which:
a. have a supervisory status certificate, granted by
the Dutch Central Bank on the basis of Part III ‘Prudential Supervision
Financial Enterprises’, to conduct the business of a financial institution,
insofar as it is permitted for them pursuant to that certificate to provide
investment services or perform investment activities;
b. have a license, granted by the Dutch Central Bank
on the basis of the present Part, to conduct the business of a bank, insofar
as it is permitted for them pursuant to that license to provide investment
services or perform investment activities.
- 2. As far as it concerns portfolio management, Article
2:96 does not apply to municipal credit banks in regard of which is complied
with the provisions of Article 4:37, paragraph 1.
- 3. As far as it concerns portfolio management and the
provision of advisory services in respect of financial instruments, Article
2:96 does not apply to financial enterprises having their seat in the
Netherlands that have a license as referred to in Article 2:65, paragraph
1, under (a), to manage an institution for collective investments in transferable
securities.
- 4. Article 2:96 does not apply to financial enterprises,
except for institutions for collective investments in transferable securities
that are an investment company, which have a license, granted by the Authority
for the Financial Markets, to manage collective investment schemes, as
far as it concerns providing advice on units in the collective investment
scheme managed by those management companies.
- 5. Article 2:96 does not apply to tied agents that
provide investment services within the meaning of the definition of an
investment service as referred to in Article 1:1, and then under (a),
(d) or (e) of that definition, where the investment firm for account of
which the tied agents provide these investment services:
a. are fully responsible for them, in the sense that
they ensure that the tied agents comply with the present Act, and;
b. have reported the agents concerned as tied agents
to the Authority for the Financial Markets.
- 6. An investment firm that is no longer responsible
for a tied agent as referred to in paragraph 5, under (a), shall notify
the Authority for the Financial Markets and the tied agent concerned thereof.
- 7. The Authority for the Financial Markets shall only
enter the tied agent in the register as referred to in Article 1:107,
paragraph 2, under (a), number 12°, if the investment firm which has
reported the tied agent concerned to the Authority for the Financial Markets
shows that, with regard to that tied agent, it will comply with the provisions
arising from Articles 4:9, paragraph 1, and 4:10.
- 8. Rules shall be set by or pursuant to Order in Council
in respect of the manner in which the tied agent will be reported as referred
to in paragraph 5, under (b), and the data to be provided and documents
to be submitted on that occasion.
Article 2:98 Exemptions for financial enterprises from another Member
State
- 1. Article 2:96 does not apply to financial enterprises
having their seat in another Member State which:
a. conduct the business of a bank from a branch office
situated in the Netherlands or by means of providing services to the Netherlands,
insofar as it is permitted for them pursuant to Section 2.2.2 to provide
investment services or perform investment activities;
b. conduct the business of a financial institution from
a branch office situated in the Netherlands or by providing services to
the Netherlands, insofar as it is permitted for them pursuant to Section
2.2.2 to provide investment services or perform investment activities,
or;
c. conduct the business of an entity for risk acceptance
or insurer from a branch office situated in the Netherlands or by providing
services to the Netherlands, insofar as it is permitted for them pursuant
to Sections 2.2.2A, 2.2.3, 2.2.4 or 2.2.4A to provide investment services
or perform investment activities.
- 2. Article 2:96 does not apply to investment firms
having their seat in another Member State which:
a. provide investment services or perform investment
activities from a branch office in the Netherlands, insofar as Article
2:101 has been complied with;
b. provide investment services or perform investment
activities by means of providing services to the Netherlands, insofar
as Article 2:102 has been complied with, or;
c. provide investment services or perform investment
activities within the meaning of the definition of providing investment
services as referred to in Article 1:1, and then under (a), (d) or (e)
of that definition, through a tied agent, insofar as Articles 2:101 or
2:102 have been complied with and the investment firm has reported the
agent concerned as a tied agent to the Authority for the Financial Markets
for entry in the register. The provisions of Article 2:97, paragraph 7,
shall apply accordingly.
Article 2:99 Statutory provisions to be met
- 1. Upon application, the Authority for the Financial
Markets shall grant a license as referred to in Article 2:96 if the applicant
shows that he will comply with the provisions arising from:
a. Article 4:9, paragraph 1, with regard to the proper
credentials of the persons referred to in that Article;
b. Article 4:10 with regard to the reliability of the
persons referred to in that Article;
c. Article 4:11, paragraph 1 and 3, with regard to the
policy on the sound conduct of business;
d. Article 4:83, paragraph 1, with regard to the minimum
number of persons laying down the day-to-day policy and Article 4:84 with
regard to determining the place from which they perform their activities;
e. Article 4:13, paragraph 1 and 2, with regard to the
control structure;
f. Article 4:14(1) and (2) with regard to the operational
structure;
g. Article 4:87 with regard to taking adequate measures
to protect clients’ rights;
h. Article 4:88 with regard to pursuing an adequate policy
in order to prevent conflicts of interests as referred to in that Article;
i. Article 3:53, paragraph 1 and 3, with regard to the
minimum equity capital;
j. Article 3:57, paragraph 1 and 2, with regard to solvency;
k. Article 4:91a with regard to the rules applicable
to the trading process and the settlement of transactions in a multilateral
trading facility, if the applicant intends to operate a multilateral trading
facility.
If the application relates to the provision of brokerage services or portfolio
management by a branch office situated in the Netherlands of an investment
firm having its seat in a non-Member State, the applicant shall also show
that the investment firm is authorised to provide investment services
in the State where it has its seat and is authorised to open a branch
office in the Netherlands.
- 2. If a qualifying shareholder’s participation
as referred to in Article 3:95 is held in the investment firm, the Authority
for the Financial Markets shall grant, without prejudice to paragraph
1, a license if the holder of the qualifying shareholder’s participation
in the investment firm complies with Article 3:95, paragraph 2, and the
Dutch Central Bank is of the opinion that the provisions arising from
Articles 3:99 up to and including 3:101 in regard of the declaration of
no objection are complied with.
- 3. The application for a license shall be submitted
with mention of the data which are to be specified by or pursuant Order
in Council.
- 4. If the application relates to the provision of an
investment service within the meaning of the definition of providing an
investment service in Article 1:1, and then under (b) of that definition,
and to the performance of the investment activity within the meaning of
the definition of performing an investment activity in Article 1:1, and
then under (a) of that definition, and the applicant also intends to conduct
the business of an investment firm operating as a systematic internaliser
with regard to transactions in shares admitted to trading on a regulated
market, he shall state this intention when making the application.
- 5. If the investment firm intends to provide ancillary
services, it shall state this intention when making the application.
- 6. Upon application, the Authority for the Financial
Markets may grant a full or partial dispensation from the provisions referred
to in paragraph 1, opening words and under (c), with regard to Article
4:11, paragraph 3, or under (d), with regard to Article 4:83, paragraph
1, or under (f), with regard to Article 4:14, paragraph 2, or under (h),
with regard to Article 4:88, paragraph 3, or under (i) or under (j), if
the applicant shows that he reasonably cannot comply with those provisions
and that the objectives which the Articles listed in paragraph 1 seek
to achieve are reached otherwise.
§ 2.2.12.2 Branch office and provision of services
Article 2:100 Investment firm from another Member State
- 1. If the Authority for the Financial Markets receives
a notification from a supervisory authority of another Member State of
the intention of an investment firm having its seat in another Member
State to provide investment services or perform investment activities
from a branch office situated in the Netherlands or by means of providing
services to the Netherlands, it shall, without delay, inform the investment
firm involved of the receipt of this notification.
- 2. Immediately after the receipt of this notification,
or, where it concerns providing investment services or performing investment
activities from a branch office, within two months after the receipt of
the notification, the Authority for the Financial Markets may inform the
supervisory authority of the other Member State of the conditions which
the investment firm must observe for reasons of public interest in providing
investment services or performing investment activities in the Netherlands.
The Authority for the Financial Markets shall send a copy thereof to the
investment firm.
- 3. Where applicable, the Authority for the Financial
Markets may request the supervisory authority of the other Member State
to inform it within a reasonable period of the identity details of the
tied agents that will act under the responsibility and for account of
the investment firm concerned, and make these details public.
- 4. If an investment firm as referred to in paragraph
1 has the intention to provide investment services from a branch office
situated in the Netherlands through a tied agent acting under its responsibility
and for its account, the provisions of the present Act with regard to
a branch office of an investment firm shall apply accordingly to the tied
agent.
Article 2:101 Starting moment for performing investment services and activities
from a Dutch branch office
- 1. An investment firm having its seat in another Member
State may start providing investment services or performing investment
activities from a branch office situated in the Netherlands two months
after the notification from the supervisory authority of the other Member
State referred to in Article 2:100, paragraph 1, or immediately after
receipt of the notification referred to in Article 2:100, paragraph 2.
- 2. Paragraph 1 does not apply to investment firms having
their seat in another Member State, insofar as it is permitted for them
pursuant to Section 2.2.2 or 3.4.1 to provide investment services or perform
investment activities from a branch office situated in the Netherlands.
- 3. Paragraph 1 does not apply to investment firms that
comply with Article 2:71, paragraph 1.
Article 2:102 Starting moment for performing services and activities to
the Netherlands from another Member State
- 1. An investment firm having its seat in another Member
State may start providing investment services or performing investment
activities by means of providing services to the Netherlands after the
notification from the supervisory authority of the other Member State
referred to in Article 2:100, paragraph 1.
- 2. Paragraph 1 does not apply to investment firms having
their seat in another Member State, insofar as it is permitted for them
pursuant to Section 2.2.2 or 3.4.1 to provide investment services or perform
investment activities by means of providing services to the Netherlands.
Article 2:103 Investment services and activities have to be specified
An investment firm as referred to in Article 2:98, paragraph 2, may not
provide investment services or perform investment activities if these
financial services are not specified in the notification referred to in
Article 2:100, paragraph 1.
Article 2:103a Investment firms operating a multilateral trading facility
- 1. An investment firm which has obtained a license
as referred to in Article 2:96 to operate a multilateral trading facility
and which has the intention to take measures in another Member State that
will enable its members or unit holders based in that Member State to
have access and to trade on that multilateral trading facility, shall
inform the Authority for the Financial Markets of such intention. The
Authority for the Financial Markets shall supply this information to the
relevant supervisory authority of the Member State involved within one
month after receiving it.
- 2. Upon the request of the supervisory authority of
the Member State referred to in paragraph 1, the Authority for the Financial
Markets shall inform the latter within a reasonable period of the identity
details of the members of or unit holders on the multilateral trading
facility.
§ 2.2.12.3 Exemption
Article 2:104 Exemptions by Ministerial Regulation
- 1. An exemption from Article 2:96 may be granted by
Ministerial Regulation.
- 2. A full or partial exemption from Article 2:99, paragraph
1,may be granted by Ministerial Regulation.
Section 2.2.13 Special provisions
Article 2:105 License having effect also on behalf of affiliated enterprises
- 1. Upon application, the Authority for the
Financial Markets shall grant a license as referred to in Articles 2:55,
2:60, 2:75, 2:80, 2:86 and 2:92 to a legal person with full legal capacity,
which license shall also extend to enterprises affiliated to that legal
person, if that legal person, without prejudice to Articles 2:58, 2:63,
2:78, 2:83, 2:89 and 2:94, shows that it:
a. possesses towards its affiliated enterprises
sufficient powers, either by virtue of its articles of incorporation and
the articles of incorporation of its affiliated enterprises or by virtue
of a contract with its affiliated enterprises, to counteract any acts
or omissions of such an enterprise in violation of the provisions arising
from Part IV ‘Conduct Supervision Financial Enterprises’ with
regard to providing financial services, with the exception of offering
units in a collective investment scheme, and to have them adhere to any
instructions issued by the Authority for the Financial Markets;
b. has sufficient possibilities to provide
the affiliated enterprises with expert support, and;
c. is authorised to represent those enterprises
in the application for a license and otherwise for the purposes of Sections
2.2.5, 2.2.6, 2.2.8, 2.2.9, 2.2.10, 2.2.11, 2.3.6 and 2.3.7 and for the
purposes of the provisions arising from Part IV ‘Conduct Supervision
Financial Enterprises’ with regard to providing financial services,
with the exception of offering units in a collective investment scheme.
- 2. If an enterprise affiliates to the legal
person after a license as referred to in paragraph 1 has been granted,
the license shall also apply to that enterprise if the legal person satisfies
the conditions referred to in paragraph 1 in respect of this enterprise.
- 3. For the purposes of Section 2.2.5, 2.2.6,
2.2.8, 2.2.9, 2.2.10, 2.2.11, 2.3.6 and 2.3.7, the acts or omissions of
the affiliated enterprise shall be regarded as the acts or omissions of
the legal person.
- 4. The Authority for the Financial Markets
may designate financial enterprises that, for the purpose of paragraph
2 and 3, are deemed to have a license as referred to in paragraph 1, if:
a. where it concerns financial service providers:
the legal person to which the other enterprises are affiliated has a license
granted by the Dutch Central Bank;
b. where it concerns investment firms: the
legal person to which the other enterprises are affiliated and the affiliated
enterprises have a license granted by the Dutch Central Bank, and;
c. the conditions meant in paragraph 1 have
been satisfied.
The decision of the Authority for the Financial Markets on such designation
may be revoked.
- 5. Rules may be set by or pursuant to Order
in Council in respect of what is provided in paragraph (1), opening words
and under (a) and (b).
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