Financial Regulation | CRD6: Third-country undertakings
CRD6 Implementation in Norway: New rules for third-country branches
CRD6 introduces a comprehensive set of rules concerning market access for credit institutions from outside the EU/EEA. Undertakings established in a third country wishing to provide core banking services in an EU/EEA State must, as a main rule, establish a branch and apply for authorisation as a third-country branch. The Directive also includes important exemptions from the branch establishment requirement, such as in cases of reverse solicitation by a client located in the EU/EEA. Norway is in the process of transposing these rules, and the Ministry of Finance has published a legislative proposal to Parliament that is expected to be subject to a vote in Parliament in early June 2026.
The New EU/EEA Framework: Third country branch requirement
According to CRD6 Article 47, read together with Article 21c, undertakings established in a third country that wish to accept deposits or other repayable funds, carry out lending activities, or provide guarantees for their own account (i.e. core banking services) in an EU/EEA State must first establish and obtain authorisation as a third-country branch in that State. The Directive does not permit cross-border provision of such services directly from a place of business outside the EEA – unless any of the specific exemptions set out in Article 21c apply, which are discussed below.
Article 21c: Exemptions from the branch authorisation requirement
Reverse solicitation: for many non-EEA credit institutions, the most relevant aspect of the new framework is the set of exemptions in Article 21c No. 2, which provides that the branch authorisation requirement does not apply where services are provided to: (a) retail clients, eligible counterparties, or professional clients (as defined in MiFID II), who approaches the third-country undertaking at their own exclusive initiative (i.e. the reverse solicitation exemption); (b) credit institutions; or (c) undertakings within the same group as the third-country undertaking.
There are, however, important limitations to the reverse solicitation exemption:
- Anti-circumvention rules: Indirect solicitation of clients through related or affiliated entities of the third-country undertaking removes the availability of the reverse solicitation exemption.
- Cross-selling restriction: Providing services on a reverse solicitation basis does not entitle the third country undertaking to market other types of products, activities, or services to that client, except for services, activities or products that are necessary for, or closely related to, the provision of the service originally solicited by the client.
MiFID II carve-out: the branch authorisation requirement also does not apply to investment services and activities carried out pursuant to MiFID II. Article 21c No. 4 expressly states that the carve-out includes the provision of accommodating ancillary services under MiFID II, such as related deposit-taking or loans or credit granted to provide investment services.
Grandfathering exemption: Article 21c No. 5 provides that rights acquired by any client under contracts entered into before 11 July 2026 will not be impacted by the branch requirement. According to The Norwegian Financial Supervisory Authority (the “NFSA”), the transposition of Article 21c into Norwegian law will not impact any existing contracts since there are no third country undertakings operating in Norway under the current third country branch regime, and therefore the grandfathering exemption is expected to have limited practical value in Norway.
Norwegian transposition of Article 21c
In its consultation paper of 17 January 2025, the NFSA proposed that most of CRD6 Article 21c be set out in the Financial Institutions Regulations and not in the Financial Institutions Act, due to the detailed nature of the provisions of the Article. Therefore, Finanstilsynet only proposed targeted amendments to Sections 5-6 and 5-7 of the Financial Institutions Act, which provides a legal basis for supplemental rules in the Regulations. The Ministry of Finance’s legislative proposal in Prop. 39 LS (2025–2026) supports the approach suggested by the NFSA, and states that the detailed rules will be set out in the Regulations rather than in the Act. The final implementing Regulations have not yet been published, but it is expected that the Ministry of Finance will proceed once Parliament has adopted the proposed amendments to the Financial Institutions Act.
BAHR’s view:
The Article 21c framework provides a firm legal basis for continued cross-border provision of banking services by non-EEA credit institutions to Norwegian clients without any need for branch authorisation through reverse solicitation, interbank transactions, and intragroup services, which are highly important exemptions for many non-EEA institutions currently active in Norway. Furthermore, CRD6 allows third country undertakings to rely on reverse solicitation to provide services or products “necessary for or closely related” to the provision of the service originally solicited by the client, which expands the scope of the reverse solicitation exemption. The scope of this exemption is however not clear-cut and should only be used following careful consideration of the interconnection between different services or products. Thorough documentation of client-initiated contacts will still be advisable under the new framework.
For institutions whose Norwegian activities cannot be structured within the Article 21c exemptions – for instance because of the nature of their services, the manner of client engagement, or the scale of their operations – branch authorisation will be required. In the EU, the third-country branch provisions of CRD6 will apply from 11 January 2027. This application date has not been adapted in the EEA Joint Committee Decision for CRD6, which means that 11 January 2027 will be the relevant application date also in Norway – unless CRD6 enters into force in the EEA Agreement later than that date as a result of national constitutional procedures not having been concluded in any of the EEA EFTA States.