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Cross-border Enforcement of Listed Companies' Duties to Inform (IVOR nr. 87) 2012/6.5.2
6.5.2 Statutory defences
mr.drs. T.M.C. Arons, datum 07-05-2012
- Datum
07-05-2012
- Auteur
mr.drs. T.M.C. Arons
- JCDI
JCDI:ADS370841:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Para. 1(2) Schedule 10 to the FSMA 2000. One or more of the following conditions, laid down in Para. 1(3) Schedule 10 to the FSMA 2000, have to be satisfied for application of this defence: (a) the person continued in his belief until the time when the securities in question were acquired; (b) they were acquired before it was reasonably practicable to bring a correction to the attention of the persons likely to acquire them; (c) before the securities were acquired, he had taken all such steps as it was reasonable for him to have taken to secure that a correction was brought to the attention of those persons; (d) he continued in his belief until after the commencement of dealings in the securities following their admission to the official list and they were acquired after such a lapse of time that he ought in the circumstances to be reasonably excused.
Para. 8 Schedule 10 to the FSMA 2000 defines an experts as 'any engineer, valuer, accountant or other person whose profession, qualifications or experience give authority to a statement made by him.'.
Para. 2(2) Schedule 10 to the FSMA 2000. Geroer-Beuerle correctly notes the interesting fact that the defendant's reasonable belief does not need to relate to the content of the statement, but merely to the defendant's competence. The person responsible is exculpated even though he might have discovered a mistake by simply reading the information provided by the expert without much further enquiries (Geroer-Beuerle (2009b), p. 31; p. 50).
CE Art. 6(2) Prospectus Directive 2003.
Para. 3(2) Schedule 10 to the FSMA 2000.
Para. 5 Schedule 10 to the FSMA 2000.
Para. 6 Schedule 10 to the FSMA 2000.
Schedule 10 to the FSMA 2000 provides the defendant a number of defences against a section 90 claim for compensation. A person does not incur any liability under section 90(1) FSMA 2000 for losses caused by a statement, if he satisfies the court that, at the time when the prospectus was submitted to the FSA or another competent authority, he reasonably believed, having made such inquiries, if any, as were reasonable, that the statement was true and not misleading, or the matter whose omission caused the loss was properly omitted.1 The standard of care is reduced, if the statement was a reproduction of an expert's opinion and that he reasonably believed that the expert2 was competent to make or authorise the statement, and had consented to its inclusion in the form and context in which it was included in the prospectus.3
Section 90(12) FSMA 2000 prescribes that a person is not to be subject to civil liability solely on the basis of a summary in a prospectus unless the summary is misleading, inaccurate or inconsistent when read with the rest of the prospectus.4 Moreover, a person does not incur liability under section 90(1) for losses caused by a statement, if he satisfies the court that before the securities in question were acquired, a correction had been published in a manner that brought it to the attention of persons likely to acquire the securities or that he took all such steps, as it was reasonable for him to take, to secure such publication and reasonably believed that it had taken place before the securities were acquired.5
With respect to the reproduction of official statements in the prospectus, a person does not incur any liability onder section 90(1) for losses resulting from a statement made by an official person which is included in the prospectus, or a statement contained in a public official document which is included in the prospectus, if he satisfies the court that the statement was accurately and fürly reproduced.6 Logically, the person responsible for the prospectus is also protected by statute against claims where the person suffering the loss knew that the statement was false or misleading, of the omitted matter, or of the change or new matter, as the case may be.7