Decisive is who has taken the initiative for providing or performing an investment service or investment activity. ‘Only on the client's initiative’ is not the case if an investment firm based in a third country offers services to clients in the Netherlands or promotes or advertises these services. In that case, this exception does not apply and the MiFID II rules are applicable to the investment firm. This exception also does not apply when the investment firm starts providing extra investment services or performing extra investment activities in addition to the investment services or investment activities initiated by the client.
MiFID II - Initiative test
The MiFID II rules do not apply to third-country investment firms under certain conditions. This is the case for an investment firm that only provides investment services or performs investment activities for its client at the initiative of a Dutch client. With the introduction of MiFID II, this rule will be incorporated into the Dutch Financial Supervision Act (Wft). The AFM applies the ‘initiative test’.