Implementation Decree on Credit Servicers and Credit Purchasers

The implementation decree on credit servicers and credit purchasers (the Decree) was submitted for consultation on March 11, 2025. The Decree implements Directive (EU) 2021/2167 on credit servicers and credit purchasers (the Directive), together with the legislative proposal, which has already been consulted and is currently under review by the House of Representatives of the Dutch Parliament (Parliamentary Documents 36 664) (the Proposal). The Decree clarifies the obligations for credit servicers and credit purchasers as outlined in the Proposal and specifies the obligations that these parties must comply with.

The Directive aims to regulate the transfer and management of non-performing loans [1] within the EU. This is intended to ensure fairer and more transparent treatment of borrowers. The Decree amends the Decree on Conduct of Business Supervision of Financial Undertakings under the FSA (Besluit gedragstoezicht financiële ondernemingen wft (BGfo Wft), “DCBS FSA”), the Administrative Fines (Financial Sector) Decree (Besluit bestuurlijke boetes financiële sector (Bb Wft), “Affd FSA”), the Decree on Market Access of Financial Undertakings under the FSA (Besluit Markttoegang financiële ondernemingen Wft (Bmfo Wft), “Mafu FSA”), and the Financial Supervision (Funding) Decree 2019 (Besluit bekostiging financieel toezicht 2019) “Fsfd 2019”).

Amendments to the Decree on Conduct of Business Supervision of Financial Undertakings under the FSA (DCBS FSA)

Credit Servicers

The Decree imposes stricter requirements on credit servicers in the areas of governance, outsourcing, and transparency. Credit servicers must have a robust governance structure and internal control mechanisms (article 29.0a DCBS FSA (new)). Furthermore, a credit servicer must have an appropriate policy regarding the integrity of its business operations. This includes, for example, the obligation to refer borrowers to debt advisory services or social services (article 29.0b DCBS FSA (new)). Additionally, a credit servicer may not outsource credit servicing activities if it negatively impacts the quality of its internal controls or the soundness or continuity of those credit servicing activities (article 38m, paragraph 2 DCBS FSA (new)). A credit servicer wishing to outsource credit servicing activities must formalize this through a contract [2] (article 38m DCBS FSA (new)) and notify the Netherlands Authority for the Financial Markets (AFM) (article 38n DCBS FSA (new)). These agreements must be archived by the credit servicer for at least five years (article 38o DCBS FSA (new)). Furthermore, credit servicers may no longer charge fees for handling complaints, and the internal complaints procedure is now mandatory for both credit purchasers and credit servicing providers to better protect borrowers (articles 44.0a and 44.0b DCBS FSA (new)).

Credit Purchasers

Credit purchasers based in the Netherlands must inform the AFM every six months about the Legal Entity Identifier (LEI) of a new credit buyer or the representative of the new credit buyer when transferring non-performing credit agreements. This requirement applies to each new transfer of a non-performing credit agreement. (article 168ce DCBS FSA (new)). If an LEI is unavailable, alternative identification information must be provided, such as the name, address, and governance details of qualified participants. Additionally, they must provide information about the outstanding balance and the scope of transferred rights. The AFM will promptly provide this information to the relevant supervisors within the European Union (Article 168ce DCBS FSA (new)). Finally, a borrower must be informed in writing about the identity of the new credit buyer and the consequences of the transfer (Articles 168ca and 168cd DCBS FSA (new)).

Amendments to the Decree on Market Access of Financial Undertakings under the FSA (Mafu FSA)

In addition to amendments to the DCBS FSA, the Decree also regulates the requirements for the licensing obligation for credit servicers and their reporting obligations. Credit servicers wishing to operate in the Netherlands must demonstrate in their license application that they are a legal entity and provide the address of their head office or statutory seat (article 33a, first paragraph, parts a, b, and c, Mafu FSA (new)). Policy makers must meet the suitability and reliability requirements of the Financial Supervision Act (Wet op het Financieel toezicht) (FSA), and the identity of individuals with qualified holdings must be provided, including evidence of their reliability (article 33a, first paragraph, parts d and f, Mafu FSA (new)). Additionally, a description of the internal complaints procedure must be submitted, and if the credit servicer holds funds on behalf of borrowers, it must be demonstrated that these funds are held in a separate account (article 33a, first paragraph, parts g and h, Mafu FSA (new)). In case of outsourcing of credit servicing activities, a written agreement is required, and the credit servicer must describe its governance structure and internal control mechanisms (article 33a, first paragraph, parts i and j, Mafu FSA (new)). Finally, credit servicers that do not hold funds must explicitly state this in their license application (article 33a, second paragraph, Mafu FSA (new)).

Amendments to the Decree on Administrative Fines in the Financial Sector (Daffs)

Article 10 of the Affd FSA makes non-compliance with any provisions from the FSA and DCBS FSA, which implement the Directive, subject to fines. The provisions subject to fines include, among others, the licensing requirement for performing the role of a credit servicer in the Netherlands, the regulations concerning the outsourcing of credit servicing activities by a credit servicer, the various obligations to adequately inform borrowers, the duties to treat borrowers in good faith, fairly, and professionally, and the integrity of credit servicing operations. A credit servicer who does not comply with the regulations on outsourcing credit servicing activities to a credit servicing provider risks a fine of up to 1 million euros. Penalty categories are established per provision and are based on the severity of the violation, aligning with the penalty categories currently in place for similar violations.

Amendments to the Decree on the Financial Supervision (funding) Decree 2019 (Fsfd 2019) 

Credit servicers holding an AFM license (article 2:64a FSA (new)) will be added to Annex I, part A, of Fsfd 2019. As a result, credit servicers will be subject to the national funding scheme for ongoing supervision, and the AFM may charge a levy for this. Credit servicers will be classified under "Providers of Credit" due to the similarities in business activities, resulting in the renaming of this category to "Providers of Credit and Credit Servicers."

Consultation and Next Steps

This Decree is open for consultation until April 8, 2025. Are you active as a credit servicer or credit buyer? This is the moment to share your opinion on the proposed regulations. Your input can contribute to balanced and workable regulation. Do you have any questions or wish to submit a response and need assistance? Please feel free to contact the specialists at Meijburg Legal.

[1] A non-performing credit agreement, within the meaning of the Directive (EU) 2021/2167 on credit servicers and credit purchasers, is a credit agreement where a borrower has failed to meet their payment obligation for a significant period (90 days) or, regardless of whether there is a payment arrears, the fulfillment of that payment obligation is considered unlikely without the enforcement of collateral.

[2] The agreement must specify that the credit servicing provider complies with all applicable legislation, including national implementation provisions of the Credit Servicers and Credit Purchasers Directive, relevant EU law, and national law applicable to the rights of the lender or the credit agreement.