Dutch market poised for CRD VI implementation

Lous Vervuurt and Gijs De Haan of Pinsent Masons were commenting after the Dutch Senate adopted the Dutch Implementation Act (Implementatiewet kapitaalvereisten 2026) of the CRD VI on 16 June.

The Implementation Act introduces stricter requirements for ‘third country’ – that is, non-EU/EEA – banks to offer certain core banking services to clients within the EU and sets out new specific requirements for banks linked to environmental, social and governance (ESG) risks.

The directive also attempts to harmonise supervisory powers and instruments, including the ‘fit and proper’ assessments for key personnel positions, and introduce more stringent rules to ensure independence of the supervisory authorities themselves.

oThe new regime aims to harmonise EU supervision of third-country banks, as well as non-EU investment firms. In principle, CRD VI does not apply to non-banking institutions such as private credit funds and alternative investment funds, although the latter must abide by the loan origination rules laid down in the amended Alternative Investment Fund Managers Directive (AIFMD), known as ‘AIFMD II’.

Downstream effects of these legislative changes could impact private credit and shadow banking as well.

Although most provisions of CRD VI had to be implemented by EU member states by 10 January 2026, the branch requirements will only become applicable on 11 January 2027, giving third country banks the time to establish a physical third country branch (TCB) or licensed subsidiary within the EU prior to this date.

Currently, provision of most banking services to professional market parties within the EU is exempt from the requirement to obtain a licence or other type of authorisation. Absent an exemption following CRD VI, third country banks providing core banking services into the EU will be required to establish a TCB or licensed subsidiary.

TCBs – unlike licensed subsidiaries of third country banks – will not have passporting rights. Should a third country bank want to offer services in multiple jurisdictions through TCBs, it is easier for it to establish one subsidiary with a European passport.

If a loan is granted by a third country bank to an EU party prior to 11 July 2026, this will fall outside of the scope of the new CRD VI regime, and the relationship can continue to exist without regulatory constraints. However, should the conditions of the loan be amended in such a way that it can be considered as novation of the loan, CRD VI obligations will apply. This is likely to be the case where, for example. the term of the loan is extended; the loan amount is increased; or a new, additional type of facility is included in the agreement.

The new TCB regime aims to prevent an uneven playing field by harmonising the regulatory framework for all EU member states and to develop the overall single rulebook for the EU’s prudential supervision further.

Vervuurt and De Haan, financial regulation experts in Amsterdam, said the impact of the new regulatory TCB regime could have a seismic impact on the Dutch lending market. “Prior to CRD VI, it was relatively easy for non-EU banks to lend money to companies in the Netherlands, stand-alone or in connection with a group financing,” said Vervuurt. “In principle, a bank licence was required if a party attracted repayable funds from the public or provided credit to consumers. Corporate lending into the Netherlands was therefore relatively straightforward and largely outside of the Dutch banking licensing perimeter, meaning the Netherlands was a popular destination for private debt structures, direct lending, securitisation, and fund finance because of the lenient regulatory regime.”

The new regime is expected to alter lender sentiment quite significantly, presenting both opportunities and challenges for the local market, said De Haan. “It could stop forum shopping but the member state option to treat TCBs as full banks may introduce new fragmentation,” he warned. “For UK and US banks wishing to provide core banking services to EU clients, such as direct lending but also lending through offshore origination vehicles or back-to-back lending, these changes may bring compliance challenges should they wish to continue providing their services.”

Vervuurt added that supervisory authorities will review these structures on a substance basis and will assess where underwriting takes place in practice. “Working with low-substance EU special purpose vehicles may therefore not be an optimal solution here,” she said, “as it directly contravenes the focus the CRD VI introduces for supervisory authorities.”

Article 48a section 4 of CRD IV, as inserted by CRD VI, permits a member state option to treat TCBs as if they were fully regulated entities under the national regulatory regime. The Netherlands has opted not to do so in the Implementation Act, limiting itself to the TCB requirements under the CRD VI directly. 

The reverse solicitation exemption – where an EU company approaches a non-EU institution providing core banking services – remains in place but is limited to activities where the EU company approaches the non-EU institution exclusively at their own initiative.

Any relationship existing as a result of brokerage services on behalf of the non-EU institution will not be considered as reverse solicitation. Furthermore, resuming a past relationship, deal-sourcing efforts in the EU or repeated lending to the same customers – regardless of who initiates the repeated lending activity – is unlikely to be accepted as reverse solicitation. “This very stringent approach to reverse solicitation does not leave much room for lenient interpretation of the term ‘own initiative’,” said De Haan.

However, Vervuurt and De Haan noted that the Netherlands has chosen to adopt the base version of the CRD VI and not undertake any further 'gold-plating' – a move which may help the Netherlands retain its position as an attractive destination for non-EU institutions wishing to provide corporate banking services into the EU.