For third-country undertakings active in the European market for financing transactions and other banking services, the legal landscape is changing fundamentally. As a general rule, certain services will no longer be capable of being provided directly from a third country to clients or counterparties established in the EU, including the Netherlands. Where the new regime applies, those services will in principle have to be provided either through a locally authorised branch in the relevant Member State or through an EU subsidiary. This follows from CRD VI, which is currently being implemented in Dutch law. The relevant rules are, in principle, to apply from 11 January 2027.
In this blog, I discuss when the requirement to establish a branch applies, which exceptions are available, and why the Dutch implementation in particular merits close attention in practice.
What is the current situation of third-country undertakings and financing transactions according to Dutch law?
Currently, before CRD VI takes effect, the position for third-country undertakings is still determined largely by national rules and differs by activity. A third-country bank that opens a branch in the Netherlands is already subject to a licensing requirement.[1] At the same time, there is no general rule requiring a third-country undertaking to establish a Dutch branch merely because it provides services into the Netherlands on a cross-border basis. Rather, the current Dutch position must still be assessed on an activity-by-activity basis for the non-EU entity concerned.
By way of example, cross-border corporate lending and the provision of guarantees will, as such, generally not give rise to a separate Dutch licensing requirement. By contrast, the offering of consumer credit is subject to a separate Dutch licensing regime[2]. The position in relation to deposits and other repayable funds is (even) more restrictive. Under Section 3:5 of the Dutch Financial Supervision Act (Wet op het financieel toezicht, Wft), a person (such as a third-country undertaking) may not attract, obtain or have at its disposal repayable funds from the public in the Netherlands in the course of business. Whether that is permitted under the current Dutch framework therefore depends, among other things, on from whom the funds are attracted. That is also one of the reasons why CRD VI is so relevant in practice, as the Dutch implementation may alter that position further. I return to that point below.
Which third-country undertakings are affected by the new rules?
That current Dutch position will, however, change materially once the new CRD VI regime takes effect. Under that new harmonised framework, the starting point is a common EU branch regime for certain core banking services. To determine when the requirement to establish a branch will arise under that new regime, it is first necessary to identify which undertakings and services fall within its scope. CRD VI applies to three core banking services:
1) Taking deposits and other repayable funds.
2) Lending, including credit agreements relating to immovable property, factoring, with or without recourse, and financing of commercial transactions, including forfeiting.
3) Guarantees and commitments.
CRD VI draws an important distinction here. In relation to taking deposits and other repayable funds, the regime may in principle apply to any third-country undertaking carrying on that activity in a Member State. By contrast, in the case of lending and guarantees and commitments, the regime applies only to undertakings which, if established in the EU, would qualify as credit institutions.[3] It is therefore irrelevant whether the undertaking actually holds a banking licence in its home jurisdiction.
In the context of lending and guarantees, a non-bank financier established outside the EU, such as a direct lender or other alternative credit provider, will often fall outside scope, provided it does not otherwise exhibit the characteristics of a credit institution. The same party may nevertheless fall within the branch requirement if it takes deposits or other repayable funds.
When does the requirement to establish a branch not apply?
The fact that an undertaking or activity falls within the scope of the new regime does not automatically mean that a branch must be established. CRD VI provides for four exceptions:
1) Reverse solicitation.
The most important exception is the reverse solicitation exception. It applies where the EU client or counterparty approaches the third-country undertaking at its own exclusive initiative. That exception is expected to be interpreted strictly. This follows not only from CRD VI itself, but also from the Dutch explanatory memorandum to the implementing legislation and from the fact that the exception is modelled on MiFID II and MiCAR, where reverse solicitation is likewise interpreted narrowly. In short, once the non-EU party actively solicits business, engages in marketing or otherwise seeks, directly or indirectly, to generate demand, reliance on that exception becomes open to challenge. A standard contractual statement that the client acted on its own initiative is therefore not, in itself, sufficient. In practice, the undertaking must also be able to demonstrate how the contact arose and why there was genuine client initiative. A proper audit trail is therefore essential.
2) Interbank services.
A second exception applies to interbank services. It covers situations in which the core banking service is provided exclusively to a credit institution established in a Member State. The exception is therefore confined to services provided to banks and does not automatically extend to other professional counterparties, such as insurers, pension funds, investment funds or other financial undertakings.
3) Intra-group services.
A third exception applies to intra-group services. Where core banking services are provided exclusively within the same group, there is in principle no requirement to establish a branch.
4) The MiFID II carve-out.
A fourth exception applies under the MiFID II carve-out. The branch requirement does not apply to core banking services that are directly linked to investment services or activities, or to ancillary services, within the meaning of MiFID II. Examples include a cash account or credit facility that is functionally connected to investment services or custody services.
The requirement to establish a branch and the proposed extension of section 3:5 Wft
In the Netherlands, the position in relation to deposits and other repayable funds appears to go beyond the mere introduction of the new branch regime because of the implementation of CRD VI. The Dutch legislative proposal not only recasts Section 2:20 Wft as the gateway provision for the new third-country branch regime, but also amends Section 3:5 Wft with regard to the attraction of repayable funds by third-country undertakings. Under the proposal, Section 3:5(1) Wft would be supplemented by an additional prohibition for third-country undertakings, supplementing the existing public-based restriction with a further prohibition in relation to repayable funds attracted from persons “other than the public”. Under Dutch law, that category is particularly relevant because “the public” is understood not to include, in particular, professional market parties or funding raised within a closed circle. In practice, this means that a third-country undertaking may no longer be able to raise funding in the Netherlands from institutional or other professional counterparties on the same basis as before, even where no retail or other public funding is involved. That is particularly significant in the Dutch context, because Dutch law has traditionally taken a broad view of what may qualify as repayable funds. If this approach is retained in the final legislation, third-country undertakings will therefore need to assess not only whether their services fall within the requirement to establish a branch, but also whether funding from Dutch professional counterparties remains available on the same basis.[4]
Practical considerations
Precisely because of the combination of the European branch regime and the potentially broader Dutch treatment of repayable funds, third-country undertakings, Dutch borrowers and professional financiers should reassess both their existing and their proposed structures. For third-country undertakings, this means considering whether they can continue to operate on a cross-border basis, whether an exception is available, whether the requirement to establish a locally authorised branch will apply, or whether it would be preferable to operate through an EU subsidiary. It may also be necessary to amend the funding structure, transaction documentation or target client base.
Timing should already be taken into account in practice. The relevant rules are, in principle, to apply from 11 January 2027, and Member States are required to implement CRD VI in national law by that date. For existing agreements, 11 July 2026 is an important date in light of the transitional regime. Agreements entered into before that date may, depending on the circumstances, benefit from transitional protection (grandfathering). That protection is not absolute and may come under pressure if an existing arrangement is materially amended, extended or replaced after 11 July 2026.
Against that background, the following steps deserve particular attention:
- Map existing structures, in particular loans, guarantees and deposit structures involving non-EU parties, to determine whether an exception or the transitional regime may be available.
- Review proposed amendments to existing documentation in advance, since even a limited amendment may result in the loss of transitional protection or trigger the branch requirement.
- Assess new transactions at an early stage, since agreements entered into on or after 11 July 2026 fall outside the transitional regime.
- Where necessary, reconsider the overall structure, including the documentation, audit trail, governance framework and the choice between cross-border provision of services, a branch, an EU subsidiary or an adjusted funding structure.
- Assess whether the structure involves the raising of repayable funds in the Netherlands, including from professional counterparties or other persons falling outside the notion of “the public”, since the Dutch implementation may affect that position separately from the branch requirement itself.
Would you like to assess what CRD VI means for your existing documentation, a proposed financing transaction or your access to the EU market from a third country? We’d be keen to help you and please feel free to contact me directly. BarentsKrans would be pleased to advise you on the legal risks, structuring options and practical next steps.
[1] Current Section 2:20 Wft (pre-CRD VI), which already contains a licensing requirement for a Dutch branch of a non-EU bank.
[2] Section 2:60 Wft.
[3] See the definition in Section 4 (1)(1)(a) CRR. Under Dutch law, the definition of a bank refers to the CRR definition of a credit institution in Section 4(1)(1)(a) CRR.
[4] In the Dutch literature, it has been questioned whether the broader formulation of core banking service 1 was in fact intended to bring within scope funding raised only from non-public counterparties. The Dutch proposal nevertheless appears to proceed on precisely that basis, while at the same time also extending section 3:5 Wft itself for third-country undertakings