The entry into force of CRD VI harmonises the requirements that third-country (non-EU) banks must satisfy to be permitted to provide the activities listed in Annex I, points 1, 2 and 6 of Directive 2013/36/EU (the Core Banking Services) to companies established in the EU. Most notably, under the revised regime non-EU banks wishing to start (or continue) providing banking services in an EU Member State are required to at least establish a branch in the Member State in question and to obtain the appropriate authorisation.
In Dutch legislation, this requirement will primarily be implemented by the proposed Article 2:20 Wft. Whereas the present Article 2:20 Wft only applies to activities conducted from a Dutch branch, the new article expressly prohibits the provision of Core Banking Services in the Netherlands without a branch and authorisation.
In addition, CRD VI will be further refined at EU level through technical standards issued by the European Banking Authority (EBA). For example, in March 2026 the EBA published final Implementing Technical Standards (ITS) setting out uniform reporting requirements for branches of third-country banks.
Changes to the current regulations
At present, banks from a non-EU Member State are permitted to provide Core Banking Services even without a branch established in the Netherlands. These services consist of taking deposits and other redeemable funds, lending, and issuing guarantees.
Under the new Article 2:20 Wft, performing these activities in the Netherlands without a Dutch branch and an authorisation from the Dutch Central Bank (DNB) will be prohibited. Although a similar prohibition already existed in the Netherlands, an exemption applied for the commercial provision of Core Banking Services to professional market participants. That is no longer the case under the Implementation Act.
The prohibition applies to all non-EU undertakings for the taking of redeemable funds. However, as regards lending and issuing guarantees, the prohibition only applies to non-EU banks. It thus covers banks that would fall within the European definition of ‘credit institution’ if they were established in the Netherlands. Investment firms acting for their own account or underwriting financial instruments can also be caught by this definition. A non-EU financial undertaking (not being a bank in its home jurisdiction) which, if established in the Netherlands, would likewise not qualify as a bank, may still grant loans to companies established in an EU Member State. In addition, collective investment undertakings and insurance undertakings are also exempt from the prohibition.
Due to the harmonised legislation, a non-EU bank must in principle establish a branch and apply for authorisation in every Member State in which it will be providing Core Banking Services. Based on total assets and risk-related activities, such as the taking of retail deposits, a distinction is made between class 1 and class 2 branches: class 1 is considered higher-risk and is subject to more stringent requirements and supervision; class 2 is the residual category.
However, there are ways to circumvent the duty to establish a branch in each individual Member State. For instance, non-EU banks can set up a licensed EU bank as a subsidiary in a particular EU Member State. The downside to this is that establishing such a subsidiary and applying for a banking licence is time-consuming and costly, requiring the setting up of a substantial organisation within the EU. An alternative would therefore be to have the services provided by an EU or non-EU group company that does not itself qualify as a bank.
Exemptions
The following situations are exempted from the obligation to establish a licensed branch:
- A Dutch undertaking that approaches a non-EU lender ‘exclusively on its own initiative’, without any prior communication or marketing by or on behalf of the non-EU bank (reverse solicitation). This exemption is applied very strictly: to qualify, lenders must not be active in the EU in any way. Nor may they advertise, directly or indirectly, or otherwise contact potential EU clients. Additionally, the requirements for reverse solicitation must be satisfied every time that new services are provided or substantial changes are made to existing services;
- A non-EU bank that provides services exclusively to Dutch banks (interbank services);
- Services provided by an undertaking from a non-EU Member State to an undertaking in the Netherlands within the same group (intragroup services); and
- Services provided by an undertaking from a non-EU Member State directly related to providing investment services to Dutch clients, for example raising funds in connection with portfolio management (services under MiFID, the Markets in Financial Instruments Directive).
Practical implications
CRD VI obliges non-EU banks to establish a branch in the Netherlands and to obtain the appropriate authorisation if they wish to provide their services here. This has the following practical implications:
- The number of lenders authorised to grant loans to Dutch undertakings may decrease in the short term, unless current non-EU banks comply with the Dutch branch regime, establish a subsidiary, or provide services from a subsidiary in another Member State by using an EU passport to that effect.
- Companies working with non-EU banks will need to take particular account of the new CRD VI requirements when carrying out due diligence.
- When entering into new agreements, such companies should take note of contractual provisions that attach consequences to the situation in which a lender is not permitted to provide banking services in a jurisdiction. While agreements concluded before 11 July 2026 are not affected by the branch requirement, the prohibition will apply in the event of a change in term or the substitution of one debt for another.
- If the obligation is not satisfied on time, DNB may impose sanctions, for instance an administrative fine in the third category. These fines have a base amount of EUR 2,500,000 (EUR 5 million in the event of repeated infringement) but may increase to up to 10% of the most recently determined annual net turnover if that amount exceeds the aforementioned base fine.
Timeline
The legislative proposal was submitted to the Dutch House of Representatives on 19 January 2026 and is currently under parliamentary consideration. This means that the Netherlands failed to meet the EU transposition deadline of 10 January 2026. In principle, the branch regime will apply from 11 January 2027 onwards. As CRD VI is a directive without direct effect, this regime must be implemented in Dutch law before it can be enforced.
In addition, with effect from 11 July 2026, newly concluded agreements on Core Banking Services will no longer be protected under the transitional arrangements. Hence, non-EU banks that conclude agreements on Core Banking Services with EU clients after this date will fall within the scope of the branch regime. Although this deadline is not yet formally applicable under Dutch law due to the absence of implementing legislation, it would be logical for the legislature to adopt 11 July 2026 as the reference date once the Implementation Act comes into force. It is therefore advisable to bear this date in mind when entering into new agreements relating to Core Banking Services.
Please do not hesitate to contact Jeroen Vossenberg or Lisanne Haarman if you would like to know more about the Capital Requirements Implementation Act 2026 and the Capital Requirements Directive (CRD VI).