CRD VI in Dutch law: consultation of the Dutch Implementation Act

3 minutes

On 30 April 2024, the Dutch Minister of Finance published the draft implementation act for the amended Capital Requirements Directive (CRD VI) for public consultation (the Implementation Act).

This Implementation Act has been in the works for quite some time and aims to implement the material amendments by CRD VI to the regulatory framework for banks into Dutch law. In addition to CRD VI, the regulatory framework for banks also changes significantly due to the revised Capital Requirements Regulation (CRR III) which gradually started entering into force since July 2024.

Most important take-aways

The amendments to e.g. the Dutch Financial Supervision Act (Wet op het financieel toezicht) following from CRD VI Implementation Act are fourfold:

 

  1. Focus on ESG risks: these amendments aim to incorporate environmental, social and governance (ESG) risks as specific risks that should be managed by banks. This way, ESG risks are fully integrated into the internal governance of banks, as well as specifically addressed in the supervision of banks by national supervisors. Also see our previous publication on CRD VI and CRR III for more context on these amendments.

 

  1. Harmonisation of supervisory powers and instruments: these amendments aim to ensure further convergence of supervisory powers and instruments within the EU to prevent significant differences between EU Member States. This includes, for example, harmonisation in relation to fit and proper assessments for key function holders, declarations of no-objections for material changes to the bank and administrative sanctions.

 

  1. Third country branches: due to the discrepancies between EU Member States in relation to the supervision on branches of third country (i.e. non-EU) banks, the amendments in CRD VI aim to provide for a harmonised third country branch regime (TCB regime). In brief, this requires a specific branch authorisation in a member state if a non-EU member state bank provides typical banking services in an EU member state (deposit taking, lending, providing guarantees). These amendments are also described in more detail in our previous publication on CRD VI and CRR III. Note that the Dutch legislator did not use of the member state option (lidstaatoptie) to subject third country branches to the same regulatory requirements as regular banks in the Netherlands. As the TCB regime already provides for quite stringent requirements on these branches, the Dutch legislator did not deem it necessary or appropriate to subject third country branches to an even more extensive set of requirements as applicable to regular banks.

 

  1. Independence of national competent authorities: the fourth topic on which CRD VI creates amendments, is strengthening the independence of national supervisory authorities. This includes among other things minimum requirements in relation to preventing conflicts of interest at the competent authorities, which will be accompanied by EBA guidelines at a later moment.

 

Although the above provides for a short summary of the core of the Implementation Act, the act as well as the accompanying explanatory memorandum contain many other highly relevant items for banks and other market participants. We therefore recommend that banks falling in scope of CRD VI and CRR III carefully consider the impact of both the Implementation Act and the explanatory memorandum.

What else is coming?

Further to the Implementation Act, some of the amendments introduced by CRD VI will be implemented into secondary legislation (such as the Dutch Prudential Rules Decree (Besluit prudentiële regels Wft)) via an implementing decree.

It is currently not entirely clear when the draft version of this implementing decree will be published for public consultation, but we would expect this decree to follow in Q2 2025 still.

Next steps?

The consultation period ends on 28 May 2025. The implementation of CRD VI should be final by 10 January 2026, with the CRD VI amendments becoming applicable on 11 January 2026. The TCB regime should become applicable one year later, on 11 January 2027.