Safeguarding client funds

European legislation requires payment institutions and electronic money institutions to protect client funds and payments from the risk of their own insolvency. In the Netherlands, this is almost always achieved through fund segregation: the strict separation of customer funds from the payment service provider’s own capital. This is done through a “Foundation trust account” or a “segregated bank account.”

Why must client funds be protected?

Payment and electronic money institutions receive client funds and payments in the context of their payment services and are legally obliged to protect these ‘client funds’. This obligation stems from the Revised Payment Services Directive (PSD2) and the revised Electronic Money Directive (EMD2). The Dutch government has incorporated these rules into the Financial Supervision Act (Wft).

These regulations are intended to prevent creditors of a payment service provider from claiming client funds and payments, for example if the institution goes bankrupt. By completely separating client funds from the payment service provider’s own capital, these funds remain outside the bankruptcy estate and are protected for customers.

How does fund segregation work?

In practice, fund segregation is achieved by means of specially designated bank accounts that are classified as segregated asset accounts. These accounts are offered by banks. For payment service providers licensed in the Netherlands, there are two options:

Foundation trust account (Stichting derdengeldenrekening in Dutch)
Segregated bank account (Kwaliteitsrekening in Dutch)

1. Foundation trust account

Payment service providers currently mainly use a foundation trust account with a linked bank account, as this was the only option available in the Netherlands before Segregated bank accounts were introduced in 2022. In this case, the payment service provider sets up a separate foundation that exclusively manages client funds. The foundation opens and manages the associated bank account, so that client funds are not held in the name of the payment service provider but in the name of the foundation.

Although a foundation for third-party funds is de facto the standard in the Netherlands, it has some limitations:

Its establishment and maintenance are difficult and time-consuming.
This construction only exists in the Netherlands and is not in line with the rest of the EU.

Both the Autoriteit Financiële Markten(opens in new window) (AFM) and DNB(opens in new window) have therefore advocated for a modern alternative: the segregated bank account.

2. Segregated bank account

In 2022, the segregated bank account was added to the Wft by the Ministry of Finance. The legal basis is set out in the ‘Financial Markets Amendment Act 2022(opens in new window) ’ (in Dutch). A segregated bank account is a specially designed bank account for separating client funds and payments from a payment service provider’s own capital. Unlike a Foundation trust account bank account, a payment service provider can hold this bank account directly.

Advantages of the segregated bank account:

Aligns with practices in the rest of the EU.
Easier to integrate into existing business processes.
Less complicated and time-consuming than a separate foundation.

Restriction in current legislation

Although a segregated bank account has been legally possible since 2022, the Wft contains a restriction: a Dutch payment service provider may only hold a segregated bank account with a bank with its registered office in the Netherlands. This excludes banks that are licensed in another EU member state and are allowed to offer banking services in the Netherlands under European passporting rules. This restriction does not appear to be legally tenable under EU regulations and will probably have to be amended.

This restriction limits the availability of segregated bank accounts in the Netherlands, even though they offer significant advantages. The Dutch Payments Association is therefore investigating how the opening and use of segregated bank accounts can be promoted.