24.5 Part IV — Disclosure requirements in Dutch law

Chronologically, the first disclosure requirement in Dutch law for future listed companies is the requirement to issue a prospectus. This is set out in Chapter 5.1 of the Financial Supervision Act (Wet op het financieel toezicht, Wfi) and is based on the European Prospectus Directive and the Prospectus Regulation. The essence of the requirement to issue a prospectus is that the prospectus must contain all the information necessary for investors to make an informed assessment of the investment. Although it appears from the preamble of the Prospectus Directive that the aim of the requirement to issue a prospectus mainly seems to be to improve the proper operation of the securities market, the contents of the regulations included in the Prospectus Directive and in the Prospectus Regulation point rather to the countering of agency problems within listed companies. The paradox is that, as a result, the requirement to issue a prospectus is more consistent with the role it plays in actual practice, i.e. that of being a legal document which mainly plays a part afterwards. Which, incidentally, is not problematic in my opinion.

The listed companies' requirements to publish information periodically are spread over Book 2 of the Dutch Civil Code (Burgerlijk Wetboek) and the Financial Supervision Act. The implementation of the Transparency Directive has resulted in various points that lack clarity, including with regard to the signing of statements which must be published together with the periodic fmancial information. The aim of the requirement for Dutch listed companies to publish information in or with the annual report about the corporate governance code is based on the reduction of agency problems within listed companies. Given this aim it has, in my opinion, been observed with good reason in parliamentary history that it is not up to the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten, AFM) to assess the degree of compliance with the contents of the code.

Requirements for listed companies to disclose information on an incidental basis can be classified in three categories. Firstly the requirement to disclose inside information immediately, secondly the requirements to disclose, in connection with a public takeover bid, an offer document or notice by the target company to its shareholders and thirdly the — incorrectly implemented requirement to report any changes in the capital or right to vote in another listed company. These obligations only have a European legal background and are included in Dutch law in the Financial Supervision Act. I have several reservations where parts of these obligations are concerned. They are, to a certain extent, unclear or incorrectly implemented in the Financial Supervision Act.

The supervision and enforcement of the compliance by Dutch listed companies of the requirements to publish information periodically follows two paths. On the one hand, the AFM supervises, from an administrative point of view, the prompt publication of this information. On the other hand, compliance with the presentation rules for this information is enforced in the civil-law annual accounts proceedings before the Enterprise Division (Ondernemingskamer). From a functional perspective, this distinction has considerable advantages. Whether this model, also in view of the international developments, can be retained for much longer is, however, highly unpredictable.