The consultation of the Regulation on Sound Remuneration Policies (Regeling beheerst beloningsbeleid Wft 2021 – Rbb 2021) did not result in any changes to the regulation.Read more
Prohibition against inviting repayable funds
The Financial Supervision Act (Wet op het financieel toezicht) provides that it is not permitted to operate as a bank or electronic money institution without having obtained authorisation. In addition, the Act provides for a prohibition against inviting repayable funds.
The prohibition against inviting repayable funds serves to prevent persons or legal entities not being banks from inviting funds from the public. These persons or legal entities will usually be unable to provide the financial safeguards to ensure that the funds are handled in a responsible manner and can be repaid at any given point in time.
Prohibition against inviting repayable funds
In the Netherlands, it is prohibited, in the pursuit of a business outside a restricted circle, to invite, acquire or have the disposal of repayable funds from parties other than professional market operators.
As provided for in section 3:5(2) of the Financial Supervision Act (Wet op het financieel toezicht), the prohibition does not apply to:
- banks authorised by De Nederlandsche Bank, and banks established in another EU Member State which carry on their business from a branch situated in the Netherlands or by providing services to the Netherlands, and banks established in another Member State authorised by the supervisory authority of that Member State;
- the EU Member States and their regional or local authorities;
- those inviting repayable funds by providing securities (for instance, by means of a bond issue).
Certain corporations and persons have been exempted from the prohibition against inviting repayable funds by means of the Exemption Regulation (Vrijstellingsregeling Wft). These include bailiffs, notaries public, administrators offering the debt rescheduling process under Title III of the Bankruptcy Act (Faillissementswet), foundations meeting certain conditions, and registered money transaction offices and trust offices.
On request, DNB may, whether or not for an indefinite period, grant dispensation from the prohibition. The Decree on the Scope of the Provisions of the Financial Supervision Act (Besluit Reikwijdtebepalingen Wft) lists the requirements to be satisfied by holders of a dispensation.
Transitional law regarding dispensations granted under the Act on the Supervision of the Credit System 1992 (Wet toezicht kredietwezen 1992)
If a corporation was granted dispensation before 2007 from the prohibition contained in section 82(1) of the Act on the Supervision of the Credit System 1992 (Wet toezicht kredietwezen 1992) against inviting, receiving or having, in the course of its business, funds, repayable on demand or subject to notice being given, from the public, that dispensation is also valid under the Financial Supervision Act (Wet op het financieel toezicht). Effective 1 January 2007, such dispensations are based on section 3:5(4) of the Act. DNB remains the supervisory authority responsible for (granting dispensations from) this prohibition.
If a corporation was granted dispensation before 2007 from the prohibition contained in section 82(1) of the Act on the Supervision of the Credit System 1992 (Wet toezicht kredietwezen 1992) against acting as intermediary in any way for the purpose of inviting or receiving funds from the public in the course of its business, that dispensation is also valid under the Financial Supervision Act (Wet op het financieel toezicht). Effective 1 January 2007, such dispensations are based on section 4:3(4) of the Act. As from that date, the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten) has been the supervisory authority responsible for (granting dispensations from) this prohibition.
Handling an application for dispensation involves costs. The level of these costs has been laid down in a Regulation of the Minister of Finance dated 14 January 2011, no. FM/2011/59 M, stipulating the amounts chargeable in 2011 for non-recurrent supervisory acts as referred to in sections 2 and 3 of the Decree on Covering the Costs of Financial Supervision (Besluit bekostiging financieel toezicht).
Corporations having a dispensation under section 3:5 and/or section 4:3 of the Financial Supervision Act (Wet op het financieel toezicht) are included in the register under the Act. The register is public and states the name of the corporation, the date when the dispensation was granted, the permitted activities and any restrictions imposed.
Scope assessment by DNB
If you need to know whether the prohibition to take (deposits and other) repayable funds also applies to your (proposed) activities, you can submit a request for a scope assessment to us. Please provide a substantiated legal analysis of your proposed activities. Your conclusion must be based on the Financial Supervision Act (Wet op het financieel toezicht – Wft). You can then submit this analysis to our Expert Centre on Market Access at: firstname.lastname@example.org. You will usually receive a response within 4 weeks. Complex applications may require some more time.
- Clearing & Settlement Systems
- Clearing institutions
- Investment firms
- Payment institutions
- Pension funds
- Premium Pension institutions
- Trust offices