- What is a trust service provider and a trust service?
- Provision of trust services
- Licensing obligation
- Licensing requirements
- Licensing procedure
The BES Financial Markets Act (Wet financiële markten BES / Wfm BES), which entered into force on 1 July 2012, sets out the activities that are subject to a licensing requirement, the procedure to be followed and the requirements that must be satisfied. Below follows an explanation of how a trust service provider can gain admission to the market as well as the admission procedure to be completed.
Please note that with the Wfm BES entering into force on 1 July 2012, a licensing obligation also applies for legal persons registered with a trust service provider operating under a licence under the BES Trust Business Supervision Act (Wet toezicht trustwezen BES / Wtt BES); see here for further details.
What is a trust service provider and a trust service?
Trust service provider
A trust service provider is defined in Section 1:1 Wfm BES as a party engaged in the business or profession of providing trust services. This generally applies when the trust services are not provided on a one-off or very infrequent basis. The circumstances will have to show in practice whether the definition of a trust service provider applies in a specific situation.
A trust service is defined in Section 1:1 Wfm BES as follows:
- the provision of the following services on the request of a third party other than a third party that is a member of the same group as the party providing the trust services:
a) acting as the managing director or a partner of a legal person or company;
b) making an address or correspondence address available to a legal person or company in combination with the provision of administrative and advisory services;
c) incorporating or liquidating or arranging for the incorporation or liquidation of legal persons;
d) acting as a trustee;
- selling or mediating in the sale of legal persons;
- making use of the services of a company that is a member of the same group as the party providing the trust services in the provision of trust services to the client;
- providing other services to be designated by an Order in Council.
Provision of trust services
Trust services or products can be provided in or from the Caribbean Netherlands in the following three ways: via a registered office, via a branch or via the provision of services.
Via a registered office
A registered office in the Caribbean Netherlands exists if the trust service provider has its head office on Bonaire, St Eustatius or Saba. Evidence of this can usually be found in the articles of association or regulations of the company.
Via a branch
A trust service provider can be exclusively admitted to the Caribbean Netherlands by means of a branch if its registered office is on Curaçao or St Maarten. In this case, the company maintains a permanent presence (branch) in the Caribbean Netherlands from Curaçao or St Maarten. The branch has no legal personality of its own. Branches without a registered office on Curaçao or St Maarten will not be admitted to the Caribbean Netherlands for the time being.
Free provision of services
A trust service provider with its registered office on Curaçao or St Maarten can also deliver financial products or services in or from the Caribbean Netherlands without a permanent presence on the Caribbean Netherlands.
It is forbidden to provide trust services without a licence of De Nederlandsche Bank (DNB) in or from Bonaire, St Eustatius or Saba (Caribbean Netherlands). This licensing obligation applies to any party providing trust services in or from the Caribbean Netherlands from a registered office or a branch or through the provision of services.
DNB can grant a group licence if a group includes multiple trust service providers. However, each trust service provider within the group must have its own licence. A group is an economic entity of legal persons, companies or natural persons affiliated in an organisation.
On the grounds of the BES Financial Markets Act (Wet financiële markten BES / Wfm BES), a trust service provider must meet certain requirements to carry out its business of providing trust services in the Caribbean Netherlands. When dealing with the licence application, DNB assesses whether these requirements are met.
The licensing requirements for conducting the business of a trust service provider are laid down in Section 2:11 Wfm BES. These are worked out in greater detail in the BES Financial Markets Decree (Besluit financiële markten BES / Bfm BES).
The most important licensing requirements include:
- Registered office: the trust service provider must have its registered office in the Caribbean Netherlands, Curaçao or St Maarten (Section 3:1 Wfm BES);
- Properness and fitness (Sections 3:4 and 3:5 Wfm BES);
- Two pairs of eyes principle and location of the work (Section 3:5 Bfm BES);
- Sound and controlled operations (Sections 3:8 and 3:9 Wfm BES);
- Programme of activities (Section 2:2 Bfm BES); and
- Transparent control structure (Section 3:10 Wfm BES).
In addition, the licence application must comprise a business plan providing, among other things, a detailed description of the proposed activities, the type of customers, the revenue model and the strategy for the coming three years.
Branch and provision of services
The licensing requirements for conducting the business of a trust service provider by means of a branch in the Caribbean Netherlands are laid down in Section 2:11 Wfm BES. These are worked out in further detail in the Bfm BES. For a summary of the most important licensing requirements, see the previous section.
With regard to the provision of services, the following licensing requirements also apply:
- Registered office: the trust service provider must have its registered office on Curaçao or St Maarten and be active in the Caribbean Netherlands by means of a branch (Section 3:1 Wfm BES);
- A declaration from the supervisory authority of the trust service provider’s home country (i.e. the state where its registered office is established) to the effect that the trust service provider is authorised to conduct the activities that are subject to the licensing requirement, as referred to in Section 3:2 Wfm BES (Section 2:2 (h), Bfm BES), in its home country.
- Name, address and telephone and telefax numbers of any branches in the Caribbean Netherlands
The licence application must be submitted by means of the Application Form for Trust service provider. This form is available via the link below.
The completed application form, including all requested documents, can be sent by email or by post to:
De Nederlandsche Bank NV
Attn Expertisecentrum Markttoegang
P.O. Box 98
1000 AB Amsterdam
DNB decides on a licence application within thirteen weeks of receiving a complete licence application. DNB may decide not to deal with a licence application if, for instance, the applicant has failed to submit all the required details and documentation for the application.
DNB will only deal with licence applications that are complete. To be deemed complete, the application must at least meet all licensing requirements. Please note that DNB is permitted to request additional details and/or information to supplement the licence application.
From 1 July 2012, the fee for dealing with a licence application for a trust service provider with a registered office in the Caribbean Netherlands is USD 2,000. The fee for a trust service provider active by means of a branch in the Caribbean Netherlands and for incoming service providers without a base in the Caribbean Netherlands is USD 1,000.
From 1 January 2013, licensed trust service providers must also pay a contribution for the continuous supervision. The amount of this fee will be USD 1,000 for a trust service provider with a registered office in the Caribbean Netherlands, and USD 500 for a trust service provider based outside the Caribbean Netherlands.
- Application Form for Trust Service Provider with Registered Office in the Caribbean Netherlands
- Application Form for Trust Service Provider with Branch in the Caribbean Netherlands
- Application Form for Trust Service Provider for Provision of Services in the Caribbean Netherlands
- Properness and Fitness Assessment Questionnaire
- Application Form for Declaration of No Objection
You can email your questions accompanied by your own clear analysis.