Dutch court rebuffs DNB in case against Dutch crypto sector

What is this about?

On 14 December 2023, the preliminary relief judge of the Trade and Industry Appeals Tribunal (CBB) rejected the request of the Dutch Central Bank (DNB) to suspend the effects of the ruling of the Rotterdam court of 4 October 2023, in particular the obligation of DNB to compensate 11 CASPS for unduly charged costs.

Which parties should care?

The 14 December ruling directly impacts the crypto service providers (CASPs) that initiated the earlier court case against DNB. However, this ruling may also be relevant for:

• other crypto service providers registered with DNB;
• firms that are currently in the crypto registration process with DNB; and
• firms that are considering to register as crypto service provider with DNB.

What should they know?

On 4 October 2023, the court of Rotterdam ruled in a case initiated by 11 registered CASPs against DNB. These CASPs opposed the costs charged by DNB for the assessment of their registration requests.

The Rotterdam court ruled in favour of the CASPs and stated that DNB was not permitted to charge any costs for tasks performed during the registration process that go beyond the scope of the European framework (as laid down in the AMLD). Consequently, DNB should pay back the illegally charged costs to the CASPs.

Moreover, according to the Rotterdam court, the provisions in Dutch law implementing the AMLD that go beyond the scope of article 47 AMLD (and DNB's application thereof) are 'non-binding'. We commented on this ruling in the Dutch financial newspaper Het Financieele Dagblad (available here).

DNB filed a further appeal against this ruling of the court of Rotterdam, and submitted a request for a preliminary injunction with the CBB to suspend the effects of this ruling. This request was discussed in court on 13 December 2023, and was ruled upon by the CBB today (14 December 2023).

In today’s ruling, the CBB rejects DNB’s request for the preliminary injunction. This rejection is based on a balancing of interests, so the CBB does not rule on the merits of the case. According to the CBB, DNB’s interest (potentially being exposed to a refund risk) is insufficient.

When does this become relevant?

This becomes relevant as of today (14 December 2023).

Any further thoughts?

It is yet to be seen what in practice the impact of this ruling on DNB’s assessment of submitted crypto registration requests will be. In today’s ruling, the CBB mentions that the 4 October ruling (of the court of Rotterdam) does not have a direct significance for any new registration requests and does not force DNB to apply a different approach in this context.

That being said, we believe it would be difficult for DNB to fully ignore the 4 October 2023 ruling when dealing with crypto registration processes in practice.

The ruling of the CBB’s preliminary relief judge is available here.