On 15 April 2025, the Dutch Ministry of Finance submitted the long-awaited draft bill for the Dutch implementation of the revised Consumer Credit Directive ((EU) 2023/2225) (the "Implementation Bill") for consultation. In this article, we discuss several key components of the Implementation Bill.
Extension scope
The Implementation Bill stipulates that various forms of credit will no longer be exempt from the scope of the Financial Supervision Act ("Wft") and Title 2a of Book 7 of the Civil Code ("BW"). Among others, the exemption for credit agreements that must be repaid within three months and for which only insignificant costs are charged will be abolished. This exemption was particularly used by providers of so-called Buy-Now-Pay-Later-services. As a result of the Implementation Bill, most providers of Buy-Now-Pay-Later-services will no longer be exempt from regulation.
Only a limited number of providers of Buy-Now-Pay-Later-services will still be eligible for an exemption under the Implementation Bill. This applies to cases where (i) the supplier or service provider of the relevant good or service grants the payment deferral themselves (without intervention of a third party, unless the third party qualifies as a platform), and (ii) no interest or costs are charged except for limited costs due to payment arrears, and (iii) the payment must be made in full within 50 days. If the supplier does not qualify as a micro, small, or medium-sized enterprise but as a large company, a shortened payment term of a maximum of 14 days applies to be eligible for this exemption.
Providers of Buy-Now-Pay-Later-services who cannot rely on the above-mentioned exemptions must, in principle, have a license from the Dutch Authority for the Financial Markets ("AFM") to offer regulated credit in the Netherlands. Additionally, the civil relationships with the consumer will henceforth be governed by the consumer protection provisions of Title 2a of Book 7 of the BW, and these providers must, in principle, comply with the ongoing conduct supervision requirements of Part 4 of the Wft.
The Implementation Bill also introduces new ongoing obligations that apply to all credit providers. For example, they must identify early payment problems with consumers and refer consumers with payment problems to debt advisory services. Furthermore, the Implementation Bill introduces a legal prohibition on entering into credit agreements with minor consumers unless permission from the legal representative is obtained. This last exception does not apply to providers of Buy-Now-Pay-Later-services. They are at all times prohibited from entering into credit agreements with minors, regardless of whether they obtained permission from the legal representative.
Private lease
Simultaneously with the publication of the Implementation Bill, the Ministry of Finance also started a consultation on regulating private lease agreements. In short, the Ministry of Finance is considering not only bringing private lease agreements with a purchase option (which are brought under the scope of the Wft via the Implementation Bill) but also certain private lease agreements without a purchase option or obligation under the scope of the Wft. This concerns operational lease agreements with consumers that:
- are entered into for a period of six months or more; and
- represent a total contract value of €1,000 or more; or
- contain a penalty for early termination of €500 or more; or
- contain a notice period of two months or more.
In the consultation document, the Dutch Ministry of Finance requests market participants to provide their input on whether it is considered desirable or necessary for such private lease agreements to fall under the scope of the Wft and whether consumers would benefit if the safeguards of the Wft were applied to private lease without a purchase option or obligation.
Gold-plating
Furthermore, the Implementation Bill provides for various member state options offered by the revised Consumer Credit Directive ((EU) 2023/2225), among others, in relation to Buy-Now-Pay-Later-services and deferred debit cards.
Since most Buy-Now-Pay-Later-services are no longer exempt from licensing requirements, retailers and merchants using a third party offering Buy-Now-Pay-Later-services would, in principle, qualify as intermediaries within the meaning of the Wft and would need a license for that activity or must be registered with the AFM. However, the Implementation Bill relies on the member state option to exempt micro, small, and medium-sized credit intermediaries from a licensing or registration requirement with the AFM if their ancillary activity consists of mediating in credit.
The Implementation Bill does not make use of the option to exempt deferred debit cards (the most common form under which credit cards are issued in the Netherlands) from the scope of the Wft. This is mainly to prevent unequal application of consumer protection and to create a level playing field for similar short-term credit products.
For providers of deferred debit cards and Buy-Now-Pay-Later-services, a lighter regime is provided regarding pre-contractual information requirements. Specifically, this means that such providers do not need to inform consumers, for example, when the price of the credit is personalised based on automated data processing or about the possibilities for out-of-court dispute resolution.
The consultation period runs until 13 May 2025 and CMS closely monitors developments. Through CMS's participation in the legal committee of the Dutch Finance Houses' Association ("VFN"), CMS is involved in drafting the VFN's consultation response regarding the Implementation Bill and the inquiry about whether or not to (further) regulate private lease.
Since the revised Consumer Credit Directive ((EU) 2023/2225) must be implemented into national legislation by 20 November 2025, and comes into effect on 20 November 2026, it is likely that the final implementation bill proposals will be circulated soon.
Contact
For more information on what these changes specifically mean for your business, please feel free to contact us. We would be pleased to discuss this topic with you in greater detail.
