On 19 December 2014, the final version of the Financial Amendment Decree 2015 (the ''Amendment Decree 2015'') was published. The final Financial Markets Amendment Act 2015 (the "Amendment Act 2015") was published a little earlier, on 5 December 2014.

The Amendment Act 2015 and the Amendment Decree 2015 contain, amongst others, new rules regarding:

  • An extension of the scope of the suitability and integrity requirements;
  • An extension of the scope of the bankers' oath;
  • Close-out netting and the Intervention Act
  • The concentration of court cases in first instance with respect to investment services, investment activities or offering of securities to the public at the District Court of Amsterdam;
  • The tightening of the regime for group finance companies;
  • A legal framework for covered bonds; and
  • Amendments in connection with the implementation of Solvency II.

Act on the Remuneration of Financial Undertakings Due to a second written round of questions from the Upper House (Eerste Kamer) of Parliament, the entry into force of the Act on the Remuneration of Financial Undertakings is delayed. The act will not, as previously envisaged, enter into force on 1 January 2015. It is not yet known when the act will now enter into force.

Contents:

Extension of the scope of the suitability and integrity requirements Extension of the scope of the bankers' oath Close-out netting and the Intervention Act Concentration of court cases regarding investment-related matters Other changes Date of entry into force of the Amendment Act 2015 and the Amendment Decree 2015

Extension of the scope of suitability testing and integrity testing

The Amendment Act 2015 extends the existing integrity requirements (betrouwbaarheidseisen) and suitability requirements (geschiktheidseisen) to persons:

  1. which have an managerial function directly below the echelon of the day-to-day policy makers; and in addition thereto
  2. are responsible for natural persons whose activities have a material impact on the risk profile of the enterprise.

This only applies to persons working under the responsibility of a bank or insurance company.

The explanatory notes to the act state that the extension does not pertain to persons involved in activities affecting the risk profile, but to persons that are responsible for these type of activities. Examples, according to the explanatory notes, are the manager of the persons performing financial transactions and the heads of compliance, risk and audit.

Extension of the scope of the bankers' oath

The obligation to take the bankers' oath is extended in the Amendment Act 2015 to (virtually) all employees of banks. Banks are obliged to ensure that in addition to management and supervisory board members, the following persons that perform activities in the Netherlands also take and comply with the bankers' oath:

  • employees with an employment agreement;
  • other persons that perform activities without an employment agreement that are part of or arise from the exercise of the banking business, or are part of the essential business processes in support thereof.

In addition, disciplinary law will be introduced.

For financial enterprises not being banks, the Amendment Act 2015 also extends the group of persons that must take the oath or promise, but not as much as for the banks. These enterprises must ensure that the following persons that perform activities in the Netherlands must take and comply with the oath or promise:

  • persons whose activities have a material impact on the risk profile of the enterprise; and
  • persons directly involved in the provision of financial services.

Close-out netting and Intervention Act

As set out in our newsletter of 18 December 2013, in the financial markets there were concerns regarding the enforceability of netting and close-out rights and security rights in the context of the Intervention Act. In order to address these concerns, the Amendment Act 2015 provides as follows:

  • The act confirms that netting rights under a close-out netting provision will not be adversely affected by a transfer plan in respect of the financial institution's assets and liabilities or by an expropriation.
  • Furthermore, with a view to addressing concerns relating to the enforceability of security rights, the act confirms that a transfer plan will also not adversely affect ancillary rights, security rights in assets of the problem institution or a third party, or other security rights and privileges in respect of such assets, provided that such rights and/or privileges could, on the basis of a master agreement or a related agreement, be enforced against the problem institution prior to the approval of the transfer plan.

Concentration of court cases regarding investment-related matters

The entry into force of the provisions regarding the concentration of certain investment-related matters in first instance to the District Court of Amsterdam has for the time ben postponed, pending a further analysis of this concentration.

Other changes

In addition thereto, the Amendment Act 2015 and the Amendment Decree 2015 contain amongst others the following amendments:

  • Tightening of the rules for group finance companies;
  • Introduction of a legal framework for covered bonds; and
  • Amendments in connection with the implementation of Solvency II.

Date of entry into force Amendment Act 2015 and Amendment Decree 2015

The Amendment Act 2015 and the Amendment Decree 2015 will enter into force on 1 January 2015. However, the extension of the scope of the suitability test and the integrity test and the extension of the scope of the bankers' oath will enter into force on 1 April 2015.