Update: Capital Requirements Implementation Act 2026: clarification of the third-country regime
In our previous article dated 27 March 2026, we provided an update on the Capital Requirements Implementation Act 2026 and, in particular, the new EU-harmonised regime for third-country firms providing certain cross-border (core) banking services in the Netherlands, such as taking deposits and other callable funds, granting loans (including consumer credit) and providing guarantees and sureties.
On 7 May 2026, the House of Representatives received an amendment memorandum (“Amendment“); a relevant amendment concerning the third-country regime arising from the Amendment relates to Article 3:5(1) of the Dutch Financial Supervision Act. (Wet op het financieel toezicht, “Wft“).
No extension of the scope of Article 3:5 of the Wft
The original bill provided for an extension of Article 3:5(1) Wft. This would have explicitly clarified that undertakings from third countries may not attract callable funds not only from the public, but also from any other than the public. That proposed amendment has been deleted. According to the explanatory notes, this addition is deemed unnecessary because Article 2:20 Wft already stipulates that third-country firms may not provide banking services (referred to in Annex I of the CRD) in the Netherlands without a licensed Dutch branch office.
Relevance for international lending structures
This clarification is particularly relevant in the context of international loans. Without this amendment, it could have been argued that a third-country firm receiving a loan and/or financing from a Dutch (professional) party thereby ‘raises callable funds’ within the meaning of Article 3:5 of the Wft. This could potentially have had consequences for cross-border lending structures. It now follows explicitly from the explanatory notes that outbound lending by Dutch companies to third-country parties remains possible, provided that it involves a genuine loan and not a disguised deposit. Furthermore, this prevents Article 3:5 of the Wft from potentially applying to occasional purchases of loans.
Third-country regime
The Amendment does not, however, alter the essence of the intended third-country regime discussed earlier. Firms from non-EU countries offering cross-border core banking services will, in principle, be required to have a Dutch branch with a DNB licence.
The new regime will, if the bill is passed, come into force on 11 January 2027. The bill also introduces a distinction between Class 1 and Class 2 branches, with different prudential requirements and levels of supervision, as well as new reporting obligations for third-country branches (from 11 July 2026).
Impact in practice
For market participants active in international lending markets, the explanatory notes regarding the amendment to Article 3:5 of the Wft provide welcome clarification: outbound lending by Dutch companies to third-country parties does not automatically fall under the prohibition of Article 3:5 of the Wft, provided that the loan actually functions as a loan and not as a disguised deposit.
Follow-up
The bill is currently undergoing further parliamentary debate in the House of Representatives and has not yet been definitively adopted. Following adoption by the House of Representatives, the bill must pass the Senate before it can become law.
We are closely monitoring the further parliamentary debate; please keep an eye on our website for relevant updates.
