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Reverse solicitation in the Netherlands

  • Netherlands
  • Banking and finance
  • Financial institutions

06-10-2020

Passive servicing (reverse solicitation) by UK financial services firms to be prohibited in the Netherlands after the end of the transitional period

Introduction

The Dutch Central Bank (“DNB”) has announced that passive servicing (also known as reverse solicitation) of customers in the Netherlands is not permitted for third country financial services firms in respect of Dutch retail customers, payment firms, electronic money institutions and (re)insurers. This will pose a problem for third country firms, which do not have the benefit of the EU passporting regime. DNB released this statement with the end of the UK’s transitional period as it leaves the EU in mind. UK financial services firms which were hoping to continue to provide services to their Dutch customers based on reverse solicitation should reconsider their options in order to keep providing services the Dutch customers after the end of the transitional period.

Note that reverse solicitation is still permitted in respect of institutions that offer investment services or that offer AIFs or UCITS in the Netherlands, based on the initiative test. This reverse solicitation is regulated by the Dutch Financial Supervision Act and the policy rule “Being Active in the Netherlands 2013”.

DNB Statement

The DNB released a statement on the provision of cross-border financial services by UK firms to Dutch customers after 31 December 2020. The DNB defines passive servicing “as service that was concluded by a UK firm with a customer living in the UK at that particular moment, but who has since then moved back to the Netherlands, with the provision of the service continuing (also after the Brexit transition period)”.

Credit institutions

UK credit institutions will be permitted to provide passive services to Dutch professional market parties including Dutch banks, investment firms, insurers and pension funds. Large denomination lenders may also qualify as professional market parties. In order to qualify as large denomination lender, a single deposit of at least EUR 100,000 must be deposited by the customer when entering into a new contract. Whether or not a customer qualifies as a large denomination lender is determined at commencement of the contract. Subsequent withdrawal of the deposit will not negate the qualification, while subsequent addition of funds which bring the aggregate deposit above EUR 100,000 will not turn the lender into a large denomination lender.

Insurers

In certain circumstances UK insurers and reinsurers may provide passive services to Dutch customers. Insurers may provide life insurance products on a reverse solicitation basis and in certain circumstances, non-life or general insurance products.

According to the DNB life insurance products cannot be considered a cross-border service under Dutch law, as long as no amendments are made to existing products/services provided to Dutch policyholders. If amendments are made to a policy, that could be considered the provision of a cross-border service.

At the moment, third country insurers which have notified the DNB in accordance with article 2:45 of the Dutch Financial Supervision Act are permitted to provide life and non-life cross-border insurance services in the Netherlands. However, the Ministry of Finance has announced that the Financial Supervision Act will be amended to prohibit the provision of such cross-border services in the future.

Therefore it is important to determine whether the insured object has also moved (back) to the Netherlands together with the policyholder. DNB provides the example of a person moving from the UK to the Netherlands together with their car, triggering the requirement to register the car in the Netherlands. Typically a UK motor insurance policy will require amendment or even the issuing of a new insurance policy if the policyholder relocates to the Netherlands. That amendment or provision of a new contract by the UK insurer will be considered as providing a cross-border service under Dutch law.

Clarification on reverse solicitation

The DNB statement clarifies that passive servicing is only permitted in the Netherlands to the extent explicitly provided for in Dutch financial regulation, for example if there is an applicable exemption applicable or if an institution possesses the appropriate license or dispensation. Previously the DNB never explicitly acknowledged the possibility of reverse solicitation and this is the first time it has made a statement on the matter.

What are the implications of the statement?

While the DNB’s statement is aimed in particular at UK financial institutions, the statement is applicable to all third country financial institutions providing services based on reverse solicitation, excluding institutions which offer investment services or offer AIFs or UCITS in the Netherlands based on the initiative test.

This means that third country payment firms and electronic money institutions are no longer allowed to provide services on the basis of reverse solicitation, while third country credit institutions cannot service Dutch retail customers. Insurers and reinsurers can only provide services on the basis of reverse solicitation in the circumstances discuss above.

Third country financial services firms should review their Dutch operations following the DNB statement. They may need to either cease any activities in the Netherlands or seek to obtain the appropriate license or dispensation in the Netherlands.

How Eversheds Sutherland can help

Eversheds Sutherland can help you determine whether the DNB statement has any implications for your business. We can help you take steps so you can continue to provide services to Dutch customers, including assisting with an application for a license application or dispensation in the Netherlands.

The pdf of this article can be read here