On 4 January 2018, the Regulation competence employees investment firms (Regeling vakbekwaamheid medewerkers beleggingsondernemingen Wft, the Regulation) was published in the Dutch Government Gazette (Staatsblad). The Regulation forms part of the legislative package implementing the Markets in Financial Instruments Directive (recast) (2014/65/EU) (MiFID II).
Besides introducing rules on the required professional competence of employees of an investment firm, the Regulation introduced, among other things:
- changes to the existing exemption to the licence obligation that is available to investment firms from Australia, the United States of America and Switzerland if the conditions laid down in Article 10 of the Exemption Regulation AFS (Vrijstellingsregeling Wft) are met. Where it concerns investment firms providing investment services, Article 10 of the Exemption Regulation AFS now stipulates that this exemption will only be available insofar the investment services are provided to professional clients or eligible counterparties. As a result, investment firms with their seat in Australia, the United States of America or Switzerland that provide investment services to retail clients or elective professional clients will no longer be able to benefit from this exemption.
- a new fourth paragraph to Article 10 of the Exemption Regulation AFS, which provides that this exemption cannot be relied upon by investment firms that are authorised to provide investment services or deal on their own account in the Netherlands through a branch office located in another EU Member State;
- a new fifth paragraph to Article 10 of the Exemption Regulation AFS, which provides that an investment firm that has been exempt on the basis of this article will continue to be exempt under MiFID II, provided that such firm notifies the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten) that it does not provide investment services to retail clients or elective professional clients; and
- a new Article 10a in the Exemption Regulation AFS, which contains an exemption to the licence obligation for third country investment firms that exclusively deal on own account in the Netherlands. To rely on this exemption, the third country investment firm is only allowed to deal with or through an investment firm that it is authorised to provide investment services or deal on own account in the Netherlands. There is no notification required in order to rely on this exemption.
View the Regulation, 4 January 2018.