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Rules for turbo-liquidations: Measures to remedy the detriment of creditors caused by the misuse of the turbo-liquidation procedure are being considered. The procedure was introduced to allow for a cost-efficient and fast way to liquidate companies without assets. Measures being considered include the mandatory preparation and deposit of final accounts and the requirement for boards to announce the turbo-liquidation and explain the absence of assets. Additionally, all missing annual accounts from previous years must be deposited before the company can be deregistered. Separately, directors can be disqualified from acting as managing directors in the event of non-compliance with their obligations in relation to turbo-liquidations. The consultation period on the draft bill ended on 27 July 2021 and further action is expected in 2022.
Digital incorporation of private limited companies (BVs): The Netherlands missed the August 2021 deadline to implement EU Directive 2019/1151which facilitates the incorporation and registration of a Dutch BV by digital means without any physical presence of the shareholders and board members. The draft legislation consultation closed on 12 July 2021, but no legislative proposal has been submitted to date.
Ultimate Beneficial Owner (UBO) registers for legal entities: Based on the fourth EU Anti-Money Laundering Directive (AMLD IV), a public UBO register for legal entities was introduced on 27 September 2020. In this register, held by the Dutch Trade Register, specific details of UBOs must be published and supporting documents must be submitted. No new legal entities can be registered without doing this and existing entities will be required to make the UBO disclosures by 27 March 2022 at the latest. A separate public register for UBOs of trusts will be introduced. A legislative proposal to that effect was approved in 2021 and is expected to come into force on 1 January 2022.
Dispute resolution and inquiry proceedings: In 2019, a consultation was launched on a legislative proposal aimed at: (i) improving access to Dutch courts by expanding the grounds to force buy-outs by or sell-outs to co-shareholders in shareholder dispute resolution proceedings; and (ii) reducing the required stock exchange value for shareholders to request inquiry proceedings before the Dutch Enterprise Chamber to EUR 20m for all listed companies. No legislative proposal has been tabled so far, however, further action is expected in 2022.
Implementation of the EU Collective Redress Directive: The directive must be transposed by 25 December 2022 and come into force on 25 June 2023. The draft legislation consultation closed on 31 May 2021. The Government believes that the Act on collective damages claims, that came into force on 1 January 2020, covers most of the directive's requirements and minor changes are required. A draft bill is expected early 2022.
MiFID Quick Fix: The EU Quick Fix amendments to MiFID II will apply from 28 February 2022, and the proposals following the EU MiFID II/MiFIR review will go through the legislative process. Consequently, ESMA are expected to amend the relevant technical standards. On 5 October 2021, the Dutch Minister of Finance launched consultations to seek views on the draft Implementation Act on the Investment Firms Recovery Package which implements the MiFID Quick Fix into Dutch law. The consultations closed on 16 November 2021.
Implementation of the Credit Services and Credit Purchasers Directive: The Directive was approved by the EU Council on 9 November 2021 and will come into force 20 days after publication in the Office Journal of the European Union. The Government will need to implement it into national law within two years. It applies to non-performing loans (NPLs) issued by credit institutions established in the EU. Credit servicing of such NPLs will become a regulated activity and require a licence (this also implies passporting rights). Although the directive is likely to take effect at the end of 2023 or early 2024, it could begin to affect market participants well in advance as they must prepare to comply with the reporting, disclosure, authorisation and other obligations laid out in it.
Financial Markets Amendment Act 2022: On 25 October 2021, the legislative proposal for the Financial Markets Amendment Act 2022 was submitted to the House of Representatives. This proposal aims to change the Dutch Financial Supervision Act in order to make it possible for payment and electronic money institutions to use a segregated bank account for client money. This will be a significant change as the relevant institutions will no longer need a separate legal entity to separate client money from their own funds. The act is expected to come into force in 2022.
European Market Infrastructure Regulation (EMIR): Changes to clearing obligations (and the related derivatives trading obligation) in view of interest rate reform are expected to take effect from early 2022. Pursuant to EMIR REFIT, the delegated regulation specifying the conditions under which commercial terms offered for clearing services are required to be fair, reasonable, non-discriminatory and transparent (FRANDT) will apply from 9 March 2022. The phase-in of initial margin for uncleared derivatives will be completed with phase 6 counterparties coming into scope from 1 September 2022. It is anticipated that draft technical standards in respect of initial margin model validation and reporting will move through the legislative process.
EU Central Securities Depositories Regulation (CSDR): The EU CSDR settlement discipline regime is due to apply from 1 February 2022. However, a delay to the mandatory buy-in requirement could be announced in the coming weeks following support from ESMA and market participants.
Legislative proposals for AIFMD II: The EC is expected to publish legislative proposals for amendments to AIFMD by the end of 2021, for consideration by the Parliament and Council in 2022. Also, ESMA’s guidelines on marketing communications come into force on 2 February 2022.
Review of EU Solvency II: The EC has proposed a series of targeted amendments to the Solvency II regime, alongside a new framework for the recovery and resolution of insurers. The EU’s legislative bodies will now negotiate final texts based on the EC’s proposals.
CIT rates and deductible EBITDA rate under the earnings stripping rules: The Dutch CIT rate in 2022 will be 15% for amounts of taxable profit up to EUR 395,000 (15% up to EUR 245,000 in 2021), and 25.8% thereafter (25% in 2021). The percentage of deductible interest under the earnings stripping rules will be reduced to 20% of fiscal EBITDA (30% in 2021).
Rules on tax losses for Dutch purposes: As of 1 January 2022, tax losses originating in book years starting on or after 1 January 2013 may be carried forward indefinitely and back one year. Such losses can as from 2022 only be fully offset against the first EUR 1m of taxable profit of a year. Insofar as the losses exceed EUR 1m these may only be set off up to an amount of 50% of the taxable profit of a year after a deduction of EUR 1m.
Implementation of reverse hybrid mismatch rule (ATAD 2): Transparent entities entered into under Dutch law or situated in the Netherlands that have one or more qualifying participants in jurisdictions which consider the entity to be opaque and that hold at least 50% of the voting rights, capital interest or profit rights, will become subject to Dutch CIT for book years starting on or after 1 January 2022.