Digital markets, funding and payment servicesi Collective investment schemes
Collective investment schemes may be subject to the Dutch implementation of the AIFMD or UCITS V (Directive 2009/65/EU, as amended by Directive 2014/91/EU). Under the Dutch implementation of the AIFMD, it is required to obtain a licence when:
- managing a Dutch alternative investment fund (AIF);
- marketing units in an AIF in the Netherlands; or
- for Dutch managers, when managing AIFs or marketing units in AIFs.
For Dutch managers, it is possible to register pursuant to the 'small managers registration regime' as a result of which no licence has to be obtained. Dutch managers can register pursuant to this regime provided that the assets under management do not exceed certain thresholds and certain marketing restrictions are taken into account (e.g., the units are only marketed to professional investors within the meaning of Section 1:1 AFS).ii Crowdfunding
Crowdfunding and crowd-lending (also referred to as investment-based and loan-based crowdfunding) are both seen as important new funding means in the Netherlands. With loan-based crowdfunding, the project owner enters into a loan agreement with the crowdfunder or the crowdfunding platform. In the case of investment-based crowdfunding, the project owner issues either equity or debt instruments to the crowdfunder or crowdfunding platform.
There is no specific crowdfunding framework in the Netherlands. Instead, existing regimes, for example, for the provision of investment services or the offering of consumer credit, have been tailored to the use of such regimes for crowdfunding platforms. Certain licensing or registration obligations may be triggered. For example, crowdfunding platforms that are used for the provision of loans to consumers must obtain a licence for the offering of credit pursuant to Section 2:60 AFS, or alternatively, a banking licence pursuant to Section 2:11 AFS if the crowdfunding platform itself attracts repayable funds from the public. Crowdfunding platforms that only provide intermediary services in respect of attracting repayable funds from the public may obtain a dispensation from the AFM to conduct such activities. If a crowdfunding platform receives and transmits orders in financial instruments issued by the project owner, it will require obtaining a licence as an investment firm from the AFM. The applicable regime therefore depends on the type of activities that the crowdfunding platform conducts and the structure that is being applied. The possibilities for crowdfunders or crowd-lenders to freely trade their loans or securities on the secondary market may be restricted in the Netherlands.iii Payment services
The provision of payment services is regulated by the Dutch implementation of PSD II (Directive (EU) 2015/2366). Providers of payment services in the Netherlands require a licence from the Dutch Central Bank pursuant to Section 2:3a AFS, unless they operate on the basis of a EU passport. In addition, banks and electronic money institutions may provide payment services in the Netherlands on the basis of their licence without obtaining an additional licence. PSD II was implemented in the Netherlands on 19 February 2019. As part of the Dutch implementation of PSD II, banks have to cooperate when a user of an online bank account wants to provide third-party providers with access to such bank accounts.