Providing services in the Netherlands from another EU Member State
An entity is also required to register under the Act if it provides services for the exchange of virtual and regular currencies, or custodian wallets, in a professional capacity or on a commercial basis in the Netherlands from another Member State, irrespective of whether it is also registered there.
The Wwft defines a Member State as a Member State of the European Union, as well as a state not being a Member State of the European Union that is party to the Agreement on the European Economic Area (EEA).
A number of factors identified in case law determine whether an entity provides services in the Netherlands. The Explanatory Memorandum clarifies these. An important consideration is that a provider “must have expressed its intention to engage in commercial relations with consumers in one or more Member States [other than that in which the provider itself is resident or domiciled], including the Member State where the consumer is resident.” Further indications could be payments made to a search engine service for displaying advertisements in one or several Member States or showing reviews from customers from specific countries on the website.
If entities are unsure as to whether they provide crypto services in the Netherlands, they can DNB to discuss an analysis of their activities: crypto@dnb.nl.
Providing services in the Netherlands from another country that is not an EU Member State
In principle, entities operating from another country that is not an EU Member State cannot register with DNB. The Act prohibits the provision of services for the exchange between virtual currencies and regular currencies, or custodian wallets, from a third country that is not an EU Member State or an EEA country.
This prohibition does not apply to providers resident, established or having their registered office in a third country designated by the Minister of Finance. The Minister has thus far not designated any such countries.
Entities established in a third country that wish to provide these services in the Netherlands must establish a presence in the Netherlands or another Member State and apply for registration with DNB. If they fail to do so, they are in non-compliance with the Wwft, and DNB can take enforcement action.
Providing services abroad from the Netherlands
An entity is required to register under the Act if it provides services for the exchange of virtual and fiduciary currencies, or custodian wallets, in a professional capacity or on a commercial basis in or from the Netherlands. This means entities providing such services abroad from the Netherlands must also apply for registration. Please note that specific regulations may also apply in the country concerned.
