Progressive Policies: Developments in Dutch financial services legislation
The Dutch financial services sector is one of the most highly developed in Europe, incorporating several international banks and a thriving fund management business. In the Netherlands various authorities supervise various fields relevant to the finance industry. The Dutch Data Protection Authority, The Dutch Central Bank (next to the European Central Bank) and The Dutch Authority for the Financial Markets (AFM) are some of the progressive bodies responsible for policing everything from EU data protection regulations, through to anti-money laundering and the treatment of crypto-assets.
This article provides an update on the most interesting recent developments in Dutch financial services legislation, covering insolvency, anti-money laundering, GDPR and cryptocurrencies.
Cryptocurrencies and blockchain
The Dutch Central Bank has ruled that, for the time being, cryptocurrencies are not legal tender in the Netherlands.
However, depending on the nature of transactions, activities and parties involved, any activity with respect to cryptocurrencies may fall within the applicability of supervisory rules and regulations. The Dutch Central Bank has issued a warning to consumers, that the entire investment may be lost and that there is no party to turn to in case of foul play. The Central Bank itself continues to experiment with cryptocurrencies and blockchain technology but has decided at this point in time, that blockchain technology is not equipped to replace, or take part in, payment systems.
GDPR
As in the rest of the European Union, The General Data Protection Regulation (GDPR) became effective in The Netherlands on 25th May 2018. It is important to adhere to GDPR rules, especially when providing financial services, since breaking the rules may result in high fines. Natural persons have stronger rights with respect to their personal data, such as the right to have them corrected or deleted and they have rights to receive a copy of their personal data kept by a third party. Natural persons may try to obtain copies of records possessed by counterparties for litigation purposes. Forewarned is forearmed!
Insolvency
Article 39 of the Dutch Insolvency Code provides that a bankruptcy trustee is entitled to end a rental contract with due notice and that a notice period of three months is in any event sufficient.
The Dutch Supreme Court recently ruled that such termination by the trustee is a regular termination and therefore no ground for the lessor or landlord to claim for damages. Any claim in relation to the payment of penalties or damages, even if part of the contract between lessor/landlord and lessee/ tenant, cannot be upheld against the estate.
Any security given by the bankrupt party cannot be enforced either, however security given by third parties, such as banks (bank guarantee) or parent companies (parent guarantee), is however valid and enforceable. Such third parties cannot take recourse against the estate of the bankrupt.
Since this became apparent in various court cases, banks in The Netherlands are no longer prepared to guarantee payments beyond such three month periods. Neither will they guarantee payment of penalties or damages in case of bankruptcy of the lessee/tenant.
There are some ways around this problem, but as they cause other difficulties they are hardly practised.
Receivables transfers
A new legal proposal is being prepared under Dutch law in which the power to contractually exclude or limit the transferability of receivables will be regulated and limited, with certain exceptions.
The transferability of receivables can currently be excluded or limited by contract to the extent Dutch law is applicable. Dependant on the wording and intent of parties when agreeing to such exclusion or limitation of transferability, such exclusion has only contractual effect or proprietary effect.
It is important to realise that the transfer and pledging of future receivables is a complicated matter in The Netherlands. It is only possible in limited circumstances, and requires a notarial deed or registration with the tax authorities.
Anti-money laundering and financing of terrorism
Dutch laws, regulations and policies designed to prevent money laundering and the financing of terrorism have been further tightened in 2018.
Recently, a record fine of over EUR 700 million was handed down in September 2018 to the largest financial institution in The Netherlands, ING Bank, at the cost of the position of its CFO.
Financial services for small businesses and consumers
The laws and regulations with respect to providing financial services and financial products to consumers have also been tightened and amended. A code of conducted was issued for financing small businesses.
Bearer shares
A law has been proposed to the Dutch Parliament, designed to nullify shares to bearer in a public limited liability company (N.V., naamloze vennootschap) established in the European part of the Kingdom of the Netherlands or its Caribbean communities of Bonaire, Saba or Saint Eustace.
There will be a limited period in which the bearer or pledgee can register the shares after which the shares and any security created thereon will become void if not registered within the specified time. After passing of the bill, no Dutch company will recognise the phenomenon of bearer shares anymore.